11 Introduction

VYAVAHARA

(LAW AND ADMINISTRATION OF JUSTICE)

CHAPTER XI

That to administer justice impartially and to punish the guilty were among the prime functions of the sovereign has been stated above (p. 57). The king was deemed to be the fountain (i. e. the distributor ) of justice. Kautilya 323 (I. 19) prescribes that the king was to look into the disputes of citizens and country people in the 2nd part of the day (divided into eight parts ). Manu (VIII. 1-3) states that the king desirous of looking into the disputes of people should enter the sabhā ( the hall of justice ) accompanied by brāhmaṇas, ministers and should there decide every day the causes of litigants. Sukra IV.5.45 is the same as Manu VII. 1, Vas. 16-2, Saṅkha-Likhita, Yāj. I. 327 and II. 1, Vispu Dh. S. II. 72, Nār. (1.2), Sukra IV. 5.5, Mānasollasa II. 20, verse 1243 state that the administration of justice was the personal concern of the king. The Mit on Yāj. II. 1 says that protecting the subjects is the highest duty of a king and that that duty cannot be discharged without eradicating and punishing the wicked, which latter requires that the king should administer justice ( vyavahāradarśana). Medhātithi on Manu VIII. 1 also says that protection consists in the removal of troubles, secular and spiritual (adrsta ). Manu VIII. 12 and 14 ( = Nār. III. 8-9 p. 42) personifies the administration of justice as Dharma incarnate by representing that when justice is administered the dart of adharma or falsehood by which dharma is pierced is taken out from the body of Dharma. Yāj. (I. 359-360) declares that the impartial administration of justice yields the same rewards as solemn vedic sacrifices do. In this way administra tion of justice was held to be a very sacred duty. Manu VIII. 128 ( = Vļddha-Hārlta VII. 194) declares that a king who punishes those that do not deserve to be punished and who does not punish those that deserve punishment incurs great obloquy and goes to hell. Vas. (19.40-43) prescribes one day’s fast for the king and three days’ fast for the purohita when the king lets off those that deserve punishment and three days’ fast for the king and the kṣcchra penance for the purohita when the king

323. feta iramarat #refiro ora

. I. 19,

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Justice, personal concern of the king

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punishes the innocent. The Mahabharata 32s (Anusasana 6:38 and chap.70) and Rāmāyaṇa say that if a king intent on pleasures does not show himself to litigants who approach him for deci sion, he would suffer like king Nrga. The Sukranitisara (IV.5.8) also says the same thing. In the Ramayana (VII. 53-54) king Nṛga is said to have been cursed to become a chameleon for a long period by two brāhmaṇas who had a dispute about the ownership of a cow and could not see the king for many days. Megasthenes (Frag.XXVII. pp. 70-71) says the king remains the whole day in court without allowing the business to be interrupted.’ Kaut.325 (I. 19) gives the advice that, when in court, the king should not cause petitioners or litigants to wait long at the door, for when a king makes himself inaccessible, those who are near him create confusion about what should or should not be done, whereby the king engenders disaffection among his subjects and makes himself a prey to his foes. The king’s court 326 of justice was called dharmasthāna (Saṅkha Likhita.), dharmāsana (Narada I. 34, Manu VIII. 23, Sukra IV. 5-46 ) or dharmādhikarana ( Kātyāyana and Sukra IV. 5.44 ). * The place where the decision of the truth of the plaint (lit. the cause or root of dispute ) is carried on by a consideration of the rules of the sacred law is called the dharmādhikarana (the Hall of Justice)-says Katyayana. Kalidasa (Sakuntalav) and Bhavabhūti (Uttararāmcarita I.) employ the word dharmāsana*

The authors of smrtis believed that there was a golden age or era of perfect virtue in the dim past, when men were bent only on right conduct, that later ages saw the advent of sinful

324. अधिनामुपसताना यरह नोपैति दर्शनम् । सुखे प्रसक्तो सपतिः स तप्येत सगो यथा महाभारत quoted by दण्डविवेक p. 13; अर्थिनां कार्यसिदश्यर्थे यस्मारवं नेषि दर्शनम् ॥ अवश्यः सर्वभूतानां ककलासो भविष्यसि । … कार्यार्थिनां विमो हि राज्ञा दोषाय कल्पते । रामायण, उत्सरकाण्ड 53. 18. 19. 25 : पोरकार्याणि यो राजा न करोति सुखे स्थिता ।यक्त स नरके घोरे पच्यते नात्र संशयः ॥ शुक्र IV. 5.8; vide उत्तरकाण्ड 53. 6 for very similar words; शालिखिती। राजा स्वाधीनवृत्तिरात्मप्रत्ययकाशा स्वयं कृत्यानुदर्शी पिस्वामितसश्चिरं भद्राणि पश्यति । राजनीतिम. p. 134.

325. उपस्थानगतः कार्याधिनामद्वारासहं कारयेत् । पूर्वी हि राजा कार्याकार्ष। विपर्यासमासः कार्यते । तेन प्रकृतिकोपमरिशंवा गच्छेत् । अर्थशाI. 19.

326. धर्मस्थान प्राच्या दिशि सच्चाग्म्युदकैः समवेत स्यात् । शE q. in सतिच. (II. p. 19): धर्मशाबविचारेण मूलसारविचनम् । पत्राधिक्रियते स्थाने धर्माधिकरणं हि तत्कात्या. प.in मतिष (II, p. 19), परा. मा. III. 1 p. 22. : The w..p.8 .reads धर्मशानासारण अर्थशास्त्रविषेचनम्. The verse as thus read is the same as

• Sukra IV. 3.44. vides..p.63 ‘यत्र स्थाने आपेदितव्यतत्वनिष्कर्ष: धर्मशास विचारेण निणेभिः क्रियते इति धर्मस्थानम् । सरयेव धर्माधिकरणमिति नामान्तरम्।।

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promptings, that therefore regulation of life by the learned and the king came into vogue (compare Gaut. VIII. 1). Manu I. 81-82 ( = Santiparva 231. 23-24) state that in the Kr̥ta age dharma prevailed in its perfection, there was no advent of adharma among men then and that in each of the three succeed ing yugas dharma declined progressively by the introduction of theft, falsehood and deceit. The Sāntiparva ( 59. 13 ff) narrates that in the Kr̥ta age there was no king and no punishment, that gradually kāma (lust) and rāga (passion) began to wield sway and dharma dwindled away. This belief in an ideal or porfect past was universal and was probably depicted in order to indeve mon to rise higher and higher in goodness and virtuo and to make them submit easily to the discipline of government and the priestly requirements. This ideal description of the past is often found associated with the picture of anarchy that reigned in the dim past which was retrieved from horrors by the creation of the kingly office ( vide pp. 30-34 above). These diametrically opposite views of the past contained in the same works (such as Manu and the Mahabhārata ) probably owe their origin to the desire of the writers to make the common people submit to the absolute rule of kings. Almost all works even from the Rgveda ( X. 10. 10) downwards believe in the progressive deterioration of religion and morals. A state of anarchy is visualised in a few works only for the purpose of glorifying the great usefulness of the institution of kingship. Nār. I. 1 states 327 ‘when people were solely bent on dharma and were truthful, there existed neither administration of law and justice nor hatred nor jealousy. When dharma declined ( or disappeared) among men, administration of law and justice came to be introduced and the king was declared to be the decider of disputes and the chastiser (of the guilty )’. Br. also (8. B. E, 33 p. 277) says ‘In bygone ages men were pre-eminently virtuous and free from cruel tendencies; now that men are overwhelmed by greed and hatred, judicial procedure has to be declared’…

The idea of Dharma took the place of the ve.y ancient conception of sta. In the Rgveda fta denotes the supreme

327 W ATAT E vampire Tata: I TOT # TEISTW hot wife मत्सरः। मटे धर्मे मनुष्याणां व्यवहाराप्रवर्तते । इटाचप्यषहाराणा राजा स्मृतः ॥ ATUE I. 1-2; xarat: goun TA VIGHT: I N

ETTI ifra: H . g. by FR IIN1, .4. p. 4. Compare Plato in ‘Laws’ (Book - IV p. 485 of the Random House edition. There is a tradition of the happy life of mankind in days when all things were spontaneous and abundant’..

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The meaning of sta

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transcendental law or the cosmic order by which the universe and even the gods are governed and which is intimately con nected with sacrifice. Vide Rg. I. 68. 2. I. 105. 12, I. 136. 2, I. 142. 7, I. 164. 11, II. 28, 4, IV. 23. 8-10 ( in which the word sta occurs ten times), X. 190. 1. On the relation of rta and law Berolzheimer in his The world’s legal philosophies’ (translated by Jastrow, New York, 1929 ) says: “closely connected with the religious and philosophical views of the Aryans are certain fundamental positions in regard to the philosophy of law which in turn became the antecedents of later legal and ethical developments among the Greeks and Romans. Foremost among these philosophical conceptions is ‘rita’, which is at once the organized principle of the universe and the divine ordering of earthly life; as the former it regulates the appearance of the sun and the moon, of day and night and embodies the un changeable principle that pervades the succession of phenomena; as the latter it is affiliated with purpose and human benefit and is exemplified in the flow of the rivers which fertilize the fields; in the cattle useful to men; in the institutions of marriage, of the monarchical state, of the patriarchal home; and in man’s sense of responsibility for his sins. The derivative conceptions of vrata ‘,’ dharma ‘,’ dhāma’, ‘svadha’ represent special aspects of ‘rita’; thus ‘vrata’ refers to any specialized embodied ‘rita’; while ‘dharma’ refers specifically to the moral function of rewarding good and punishing evil” (pp. 37-38). Vide Prof. V. M. Apte’s paper or “Rta’ in the Rgveda (pp. 55-60 of the Silver Jubilee Volume of the Annals of the B. O. R. Institute ) in which he tries to prove that rta means primarily ’the belt of the Zodiao’.

The word vyavahūra is used in several senges in the sūtras and smṛtis. One meaning of vyavahāra is ’ transaction or dealing’ as in Udyogaparva 37, 30 quoted above (on p. 207) or in Āp. Dh. S. II. 7.16.17, 1. 6.20.11 and 16. It also means a dispute, a lawn suit’ in Santi 69.28, Manu VIII. 1., Vas. 16-1, Yāj. II. 1., Viṣṇu Dh. S. III. 72, Nār. I. 1 and %, Sukra IV. 5.5. A third sense is . legal capacity to enter into transactions’ (as in Gaut. X. 48,

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Vas. 16-8, Saṅkha-Likhita (rakṣed rājā bālānām dhanānyaprāpta. vyavahārānām &c. quoted in V. R. p. 599). A fourth but a rare sense is ’the means of deciding a matter’ (as in Gaut. XI. 19 * tasya vyavahāro vedo dharmaśāstrāṇyangāni &c.). In this chapter the word vyavahāra is taken to mean law-suit or dispute in a court’ and ’legal procedure’. This sense is very ancient. In the Delhi-Topra Pillar Edict No. 1 of Asoka (Corpus I. I. vol. I. p. 123) we have the word ‘viyohālasamatā (vyavahārasamatā) and the word ‘vyavahāravidhi’ occurs in Kharavela’s Hāthigumpha Inscription (E. I. vol. XX. p. 79 ). A voharika-mahāmatta’ (vyāvahārika-mahāmātra, minister of justice ) occurs in the Mahāvagga, I. 40. 3 and Chullavagga VI. 4.9). In the medieval digests, both law and procedure are sometimes dealt with in one book as in the Vyavahāra-nirṇaya of Varadarāja and the Vyavahāra-mayūkha; sometimes the titles of law are treated of in one work and judicial procedure in another. For example, Capdeśvara composed the Vivādaratnākara(on titles of law) and Vyavahāraratnākara ( on judicial procedure). The word vyavahāra is restricted in some works to judicial procedure alone (as in the Vyavahāramātýkā of Jimūtavāhana and the Vyavahāratattva of Raghunandana ). The word vivāda which means ’ dispute’ is often used as a synonym for vyavahāra in the sense of law-guit or legal procedure or both. In Ap. Dh. S. II. 11.29.5 and in Nār. I. 5 vvāda means ’law-suit’. In the Vivādacandra of Misarumiśra and the Vivadatāndava of Kamalakara both law and judicial procedure are treated of. Yaj. (II. 8 and 305 ) appears to distinguish between vivāda (law-suit) and vyavahāra ( judicial procedure).

The word ’ vyavahāra’ is defined by several smrtis and com mentators. Kātyāyana gives two definitions, one based on

etymology and referring principally to procedure and the other giving the conventional sense having in view a dispute. “The (upasarga) v is employed in the sense of various ‘, ‘ava’ in the sense of doubt’, ‘hāra’ means ’ removing”; vyavahāra’ is 80 called because of its removing various doubts” (quoted by V.M.

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Definition of Vyavahāra

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p. 283, Par. M. III. p. 7 and Kullūka on Manu VIII. 1 ).377a This definition places the administration of justice on a high plane. The purpose of all branches of Indian philosophy is the quest of Truth or Reality. The purpose of legal procedure is, according to Kāt., the same viz. to find out the truth when there is a dispute. But there are some points of difference. The philosopher may take his own time in his search for truth; but justice has to be done as quickly as possible. Further, legal procedure hag its own method and limitations in finding out the truth, that is, it depends on oral and documentary evidence, while a philoso pher’s quest of truth may be purely intellectual and subjective. Another definition is: ‘When the ramifications of right conduct, that are together called dharma and that can be established with efforts (of various kinds such as truthful speech &c.), have been violated, the dispute (in a court between parties) which springs from what is sought to be proved (such as a debt), is said to be vyavahāra’. Hārita gives an easier definition:’ that is declared to be vyavahāra where the attainment of one’s wealth (taken away by another) and the avoidance of the dharmas of others ( such as those of heretics ) are secured with the help of) the means of proof’( quoted by the Sm. C. II. p. 1). The Mit. (on Yāj. II. 1) defines vyavahāra as averment (about a matter) as related to oneself in opposition to another’. Sukra IV. 5. 4 gives another definition. The Vyavahāramayukha gives a much

327a. वि नानार्थेऽव सन्देहे हरणं हार उच्यते । नामासन्देहहरणाद् व्यवहार इति 97: #Freur. quoted in 89. #1. p. 283, yer on HES VIII. 1, 1 4 p. 36, which says Matarqartirerererat: fauf ISAATE FATHETET विचार: व्यवहारा। प्रपत्नसाम्ये विछिने धर्माख्ये न्यायविस्तरे। सायमूलस्तु यो पादो KETT: 7 u spare p. 596, fata. (II, p. 1), TT. AT. III. pp. 5-7, 6. ¥. pp. 3-4. This last verse is variously explained. Vide my notes to Kāt. 25. The

ta (7qu. Ms. io my possession) explains EATVY UHTV U nraa विष पिच्छिले स्पेच्छया भोक्तुमशक्ये सति न्यायविस्तरे भ्यायः प्रमाणं विस्तीर्यते प्रपञ्च्यते निर्णीयते यस्मितस्मिन् धर्माख्ये धर्मनामके धर्माधिकरणमिति प्रसिद्ध सभालक्षणे स्थले माध्यमूलको यो ग्रहक्षेत्रादिविषयो बादः स व्यवहार ति। स्वधनस्य यथा प्राप्तिः परपस्य

i Fara Fant ER: #4444. eta g. by white. (II. p. 1).

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more elaborate definition ( vide text p. 1 and notes pp. 3-4 of my ed.).

A vyavahārapada 32 means the topic or subject matter of litigation or dispute’. It is the same thing as ‘vivādapada’ which word occurs also in Kaut. (III. 16 p. 191 and IV. 7 p. 218) and in Nār. ( dattāpradānika 1, abhyupetyāśuśrūṣā 1). Manu VIII. 8 shows that ‘pada’ means’ sthāna’. Yāj. II. 5 defines it as ’ If a person, who is set at naught by others in a manner that is opposed to the rules of smrti and to good usage or conventions, informs the king (or his judge ), that is a vyavahārapada’. From very ancient times eighteen vyava hārapadas have been enumerated. The underlying idea is that most of the disputes between men can be classified under 18 heads. Even Manu ( VII. 8 ) was conscious of the fact that the enumeration of 18 vyavahārapadas was a matter of a convenient arrangement and that the number 18 did not embrace all disputes whatever but only the largest number of disputes and the most important among them. Medhātithi and Kullūka make this position quite clear. 329

. There is some difference about the number and nomen clature of the vyayahārapadas among Manu and other writers of smṛtis. The following table will give some idea of the divergence as to nomenclature and the sequence in which they are treated of. All do not mention them in the same order as in Manu VIII. 4-7. For example, the order in Yāj. is rṇādāna, upanidhi, dayavibhāga, simā-vivada, svāmipālavivāda, asvami. vikraya &c. Yāj. does not enumerate all of them in one place as Manu and Nārada do.

.. 328 ज्यवहारा तस्य पदं विषयः । मिता. on या. 11.6: पई स्थान निमित्तमिति

TUTTI * on the same.

329. prosince ariqi srasia tour of our fata समार्थ पयामे वेश्म वसंत किमित्यक्सिंवत्सरादन्यस्मै बदासीति न चेदं वसानपकर्म नं

Feature FET TOTO TATA THAT: I AUT. OD RE VIII, 8; m argt न्यपि विवादपदानि सन्तीति सूचयति । तानि प्रकीर्णकशन्देन नारदापुक्तानि । कुलक on the same. ..

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32

9 krītānusaya

19 krayavikrayānu.

MANU KAUȚILYA YAJNAVALKYA

NĀRADA

BRHASPATI

(acc. to Mit.)

(in Sm. C. II. p. 9)

1 rpādana 5 ļṇādāna 1 rṇādāna

1 nādāna

1 kusida

2 niksepa 6 upanidhi 2 upanidhi 2 niksepa

2 nidhi 3 asvāmivikraya 11 asvāmivikraya 6 asvānivikraya 7 asvāmivikraya 8 asyāmivikraya 4 sambhūya-samut- 8 sambhūya-samut- 17 sambhūya-samut- 3 sambhūyasamut- 4 sambhūyotthāna thāna thāna thāna

thāna 5 dattasyānapākarma 10 dattasyānapākarma in dattāpradānika 4 dattāpradānika 3 adeyadya 6 vetanādāna (in III. 13 bare mention)11 vetanādāna

6 vetanasyānapā- 5 bhrtyadana

7 karmakarakalpa

karma 7 samvidvyatikrama 4 samayasyānapā- 10 samvid-vyatikrama 10 samayasyānapā. 10 samavatikrama karma

karma

8 krayavikrayānusaya 9 vikritakrītānusaya 8 kritānuśaya

16 vikriyasampra- { 8 vikriyāsam dana

pradana

saya

9 svāmipālavivāda

5 svāmipalavivāda

10 simāvivāda 3 simāvivāda 4 sīmāvivāda 11 kṣetrajavivāda

7 bhūvāda

11 vākpāruṣya 13 vākpārusya 13 vākpārusya 15 vākpārusya

15 vākpārusya

12 daṇdapāruṣya 14 daṇdapārusya 14 daṇdapāruṣya 16 daṇdapāruṣya

16 daṇdapārusya

13 steya

18 steya

12 steya

14 sāhasa 12 sāhasa 15 sāhasa 14 sāhasa

17 vadha

15 strisangrahaṇa sangrahaṇa (IV. 12) 19 strisangrahana

18 strIsangraha

16 strīpundharma 1 (no name but subject

12 stripumsayoga

11 stripumsayoga

dealt with in II. 2-4)

17 vibhāga 2 dāyavibhāga 3 dāyavibhāga 13 dāyabhāga

13 dāyabhāga 18 dyūtasamāhyaya 15 dyūtasamāhvaya 12 dyūtasamāhvaya 17 dyūtasamāhvaya 14 aksadevana

9 abhyupetyāśusrūsā 5 abhyupetyāśusrūsā 6 agusrūsā 16 prakirnaka 20 prakirṇaka

18 prakirpaka

19 prakirnaka

Vyavahārapadas

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It will be noticed that Yāj. omits the duties of husband and wife from the 18 topics of vyavahāra as he had already dealt with them in his section on ācāra, adds abhyupetyasuśrūṣā and prakirṇaka (miscellaneous wrongs ) and splits krayavikrayānu say& into two and thus gives 20 topics. Nārada (I. 16-19 ) has the same 15 topics as those of Manu (in some cases under slightly different names), omits svāmipālavivādā, steya and strisangrahaṇa, adds abhyupetyāśusrūṣā and another topic viz. prakirpaka and splits krayavikrayānusaya into two, viz. krītānu saya and vikrīyāsampradāna. He includes steya under sāhasa (sāhasa verge 21 ) and also in what is an appendix. Bșhaspati as quoted in the Smṛti-candrikā (vyavahāra p. 9) names the 18 vyava harapadas and adds prakirpaka. Kautilya also adds prakirnaka and omits steya’ under his dharmasthiya section, though he deals with theft elsewhere ( as in IV. 8 and 11). It is not to be supposed that the 18 topics were first started by the Manusmrti. Gaut. XII. 1 mentions vākpāruṣya and dandapārusya, treats of some of the topics without specifying the technical names e. g. he refers to the subjects of sangrahana ( in XII, 2-3), of theft (XII. 12-13), of svāmipālavivāda (in XII. 16 ff), of rṇādāna (in XII. 26-33), of nidhi (in XII. 39), of dayavibhāga (in XXVIII). Similarly the Ap. Dh. S. speaks in scattered places of some of the topics of vyavahāra such as murder ( i. e. sāhasa ) in 1. 9. 24, of adultery in I. 9. 25. 1-2 and 1. 10. 28. 15-20, II. 10. 26. 18 ff, theft in I. 9. 25. 4-11, dāyavibhāga in II. 6. 14, vākpāruṣya in II. 10. 27. 14. Vas. also mentions the word dāyavibhāga ( in XVII. 40 ) and sets out rules about it and about means of proof (XVI. 13-15), about mādāna (XVI. 31 ), about the twelve kinds of sons (XVII. 12-39). The Baud. Dh. S. (II. 2. 8) employs the word dāyavibhāga and gives several rules on that subject. Thus some at least out of the eighteen vyavahārapadas ( such as vākpāruṣya, dapdapārusya, dāyabhāga, steya ) were distinctly recognized centuries before the present Manusmrti was composed. Someśvara in Mānasollāsa (II. 20. verses 1265-1273) enumerates 22 vyavahārapadas, by splitting dattasyānapākarma into two as datta and dattāpahāraka, adds svāmibhrtyavivāda after svami pālavivāda, counts krayavikrayānusaya as two and dyūta samāhvaya as two distinct topics.

The definition of vyavahārapada in Yāj. II. 5 ( = Sukra IV. 5. 68) viz. ‘if a person informs or complains to the king’ (avedayati ced rājne) conveys that vyavahārapada means and includes only those disputes that are started or brought before

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the Court at the instance of the parties. Manu VIII. 43 pres cribes that neither the king nor his officers should start a dispute (i, e, a legal proceeding), nor should he sit silent upon (hush up) a matter which has been brought before him by another (i, o, by a party ). Gaut. XIII. 27 lays down that a party should humbly approach a judge with his complaint. Katyāyana (27) states: ‘The king 330 should not, through influence or through greed of money, take upon himself the disputes of men, when they do not theniselves want to contend (in a court)’. Mānasollāsa IL 20 verse 1274 and Sukra IV. 5. 69 say the same. There must have always been several matters, of which nobody might complain and which the king might have to look into suo motu. Manu after dealing with the 18 vyavahārapadas ( in VIII. 1 to IX, 251 ) requires the king ( in IX. 252-253) to make offorts to destroy kantakas (thorns, harmful persons) and dilates upon many aspects of his activities in this respect. Nārada relegates all matters in which the king took action suo motu to a separate topic, prakirnaka, about which he says ’ under prakirṇaka are comprised lawsuits depending on the king (i. e. on the king’s own action ) such as transgressions of the king’s commandments and obedience to his injunctions, grants of towns, dissensions among the constituent elements (such as ministers) of the State, the duties and breaches there of among heretics, followers of the veda, corporations (of merchants) and groups, dispute between father and son, neglect of prescribed penances, abstraction of gifts made to worthy persons, the wrath of hermits, sinful confusion of castes and the rules regarding their maintenance and ( in short) whatever (matter) has been omitted in the preceding ( vyavahārapadas )–these are treated under prakirpaka ‘. 331 Bphaspati defines prakirṇaka in

330. #trai a cha yetien ar ga: 1 FTO Fgffor gafla amargana. FTE ruraq. by rk on AZ VIII, 43, 4. Al. p. 285 (which reads of पागमविषादिनाम् ), स्वयं नोत्पादयेत्कार्य समर्थः पृथिवीपतिः । नावदीत तथोत्कोच दत्त Gruffuat TT: # AMRISTII, 20. 1274.

331. se une garantat perent trat:’ rarstraefeceranenot पुरमदान संभवः प्रकृतीनां तथैव गोपाखण्डिनेगम श्रेणीगणधर्मविपर्यय: । पितापुत्रविवादश्च प्रायश्चित्तव्यतिक्रमः । प्रतिग्रहबिलोपश्च कोपश्चाथमिणामपि । वर्णसङ्करदोषश्च तदेवत्तिनिय

TOT I

A g rig fi re poffing it arca (restoran 1-4 ) quoted by the FAM. on T1. II. 295. The Falerno (II. p. 331 ) reads great and explains direita na APOTT. * ETT: I que tiesa: Tt TTT: PIHT: TT TA Taurt siroan Reo II. p. 331.

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the same way as Nārada. Kautilya deals with the vyavahāra padas in his Dharmasthiya (III) section and in the Kantaka sodhana section (IV) speaks of matters that are similarly dealt with by officers called pradeṣtī8 (who correspond to coronerg and police magistrates of modern times), while matters falling under the dharmasthiya section (viz. the vyavahārapadas ) were disposed off by judges ( called dharmasthas). Kantaka means in Kautilya as in Manu IX, 252 ‘harmful persons’. The chief matters that fell within the purview of the kantakasodhana (removal or punishment of harmful persons ) officers or courts were : Artisans like blacksmiths and carpenters were generally to work in guilds and receive from people materials for working them up; if they caused unreasonable delay in handing back finished articles, they were to receive one-fourth less than the proper wages and were to be fined twice the amount of wages ; similar provisions are made for loss of wages and fines for Weavers who do not increase the weight of cloth (cotton, linen, silk, or woollen) woven up to the usual standard: washermen were to wash clothes on wooden planks or smooth stones, but if they washed them elsewhere, they were to pay compensation for loss caused and a fine of 6 paṇas; they were to be fined twelve panas for the sale, pledge or hiring out of other’s clothes; they were also to be fined for keeping clothes with them beyond the time ordinarily required; for washing the best garments, garments of middling quality and inferior garments the wages were respectively one papa, ) and ; trust worthy persons and experts were to decide disputes about colour and wages; similar rules apply to tailors ; goldsmiths, who

(Continued from the last page) In an interesting paper contributed to the Sir Denison Ross volume of papers pp. 234-240 Dr. V. Raghavan describes a work called ‘Vaisyavamsa sudhakara’ composed by Kolācala Mallinātha, the renowned commentatot of the five classical Sanskrit Kāvyas. This work is the report or decision given by a commission presided over by Mallinātha appointed to settle & dispute (which in these days might be called a caste question not cognisable by civil courts) that arose in the times of Devaraya II. of Vidyanagara (1422-1466 A. D.). Vaisyas were given a license to trade in the 24 citics and 108 shrines of the realm; certain subcastes like the Komaṭis claimed to be vaisyas and this privilege also. Mallinātha decides after a searching examination of authorities that the words vaisya, vanik, nagara, ūruja, tṛtiya. jātiya are synonyms, that Komatis, who were styled vijātis by their rivals, were vaisyas and entitled to all the privileges of vaisyas. This decision would come under either parte … fata: or a TefTTA.

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without informing (government officers ) purchased from un clean hands (1. e. from menial servants or slaves ) without changing the form of the article or after changing the form, or purchased from a thief were to be fined respectively 12, 24 or 48 paṇas ; for stealing one ( gold) māṣaka (one-sixteenth of a suvarṇa ) from off a suvarṇa, the gold-smith was to be fined two hundred paṇas and for stealing one māsaka out of a silver dharana there was a fine of twelve paṇas ; fines are provided for loss of weight ( beyond the recognised standard) in the case of working up copper, lead, brass, bell-metal, tin into vessels and articles; for manufacturing a counterfeit coin, for accepting it or passing it off to another the fine was a thousand panas and for entering a counterfeit coin in the royal treasury the punishment was death; a physician, who undertook the medical treatment of a patient without informing (government officers) of the dangerous nature of the disease, was to be punished with the first amercement if the patient died and with the middling fine if the patient died through the carelessness of the physician and if the patient suffered some vital injury, the matter was to be dealt with as assault (dandapārusya); musicians and actors shall stay in one place during the rainy season and shall avoid taking excessive gifts or indulging in excessive praise of one patron ; for violating this rule the fine was twelve paṇas. The same rules apply to those who show dumb plays and to other mendi cants, the latter receiving as many lashes as the fine imposed in similar cases on others. In IV. 2 Kautilya prescribes fines against merchants that use false measures, weights and balances ; that sell timber, iron, jewels, ropes, clothes mis representing them as superior when they are inferior ; that conspire to prevent the sale of merchandise; that cause adultera tion of grains, oils, salt, medicines &c.; that raise the prices beyond those fixed by the superintendent of commerce for local commodities and for foreign produce. In IV. 3 Kaut. provides for measures against such calamities as fire, floods, pestilen tial diseases, famine, rats, tigers, serpents and prescribes a fine of twelve papas for catching or injuring cats and mongooses employed to destroy’rats. In IV. 4 Kauṭ, prescribes the measures that the officer called samahartr has to take to protect the subjects against those who prey upon the people secretly by employing foul means. He has to employ spies under various disguises to find out the honesty or corruption of officers in the villages, of superintendents, of judges, of magistrates and witnesses and the punishment in these cases is generally

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banishment. Kautilya IV. 5 deals with the detection of young men inclined to robbery and adultery by the employment of spies and agents provocateurs in the guise of ascetics and persons reput ed to possess miraculous powers. The Kauṭillya IV.6 and 7 respec tively describe the seizure of criminals on suspicion or in the very act itself and examination in cases of sudden death. Kaut. IV. 8 speaks of questioning in the presence of the wronged party of the witnesses of the accused, whether they are his relatives or total strangers, as regards the country, the caste, the family, the name, occupation, property, friends and residence of the accused and of the application of torture to the accused to elicit an admission of guilt. It is said that torture is to be applied only in the case of those whose guilt is believed to be established prima facie (āptadoṣam karma kūrayet), that torture is not to be employed when the accused is guilty of a minor offence, is under age, old or diseased, is under the influence of intoxicants, or is a lunatic, or is overwhelmed by hunger or thirst or fatigue due to a journey, or has eaten to excess or is suffering from indigestion or is weak, nor is it to be employed in the case of a pregnant woman or a woman who was delivered of a child within a month; and in the case of other women only half the torture prescribed for males or only the asking of questions is to be employed. Learned brāhmaṇas and ascetics ( when accused) are to be subjected to espionage only. Those who violate these rules or incite others to do so and those who are guilty of causing the death of an accused by torture are to be punished with the highest amercement. Four kinds of torture were employed in the case of complaints about wrongs viz. six dandas, seven whippings, two kinds of suspen sion, and ( fourthly ) water-tube (i. e. injecting salt water in the nose from a tube ). 332 In this chapter Kaut. states that one who

332. The exact meaning of the four kinds of torture is not clear. Prof. V. R. Dikshitar in ‘Hindp Admiaistrative Institutions’ pp. 237-247 tries very hard to establish that Kauṭ, recommends no torture in any case, that ‘vākyānuyoga’ means ‘pronouncing of guilt by the jury’ and karmūnu. yoga means judgment of the Chief Justice’. Though the learned Professor’s attempt to exculpate Kautilya may be due to laudable motives, the words of Kautilya are too clear to admit of any other interpretation than the one given above, If one dispassionately considers the fact that no karma was allowed to be employed in the case of the weak, the diseased, old men &c., that in the case of women ‘ardhakarma’ alone was allowed, that a heavy fino was imposed for causing death by karma (karmanā vyāpādanena ).

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charges an innocent man with being a thief or who conceals & thief is to be punished like a thief and that even one who is not a thief may for fear of torture admit that he is a thief, as Māndavya did. Kaut in IV, 9 prescribes that the samā lart? and pradeṣtrs should exercise control over all superintendents of the various State departments and their subordinates, that those who steal or seize valuable articles or jewels from State mines or manufactories should be simply sentenced to death, prescribes various fines and punishments for stealing or re moving by force articles of different prices from the State granaries and store-houses, provides punishment for judges that threaten, browbeat, send out or unjustly silence or abuse litigants or that do not ask proper questions or ask improper questions, that cause unnecessary delay, unjustly rehear causes that have been heard or disposed of, and provides heavy punish

(Continued from the last page) that Mandavya, though really not a thief, declared that he was so through the fear of the torments of karna (karmakleśabhayat), that in the four karmas we find suspension and water-tube and that immediately after the words. karnia karayet we get the rule that in all crimes the brāhmana was not to be subjected to bodily pain, it will have to be admitted that

karma’ in this chapter of the Arthasāstra means ’torture’. One fails to see what ‘ardhakarma’in the case of women will mean if ‘karma’ signifies only the judgment of the chief justice or why Mandavya should bave confessed theft through fear of ‘karmakleśa’. And one need not feel apologetic if Kautilya recommends torture in certain well-defined cases, Torture was an essential part in tbe Roman Criminal Procedure and Augustus had issued an edict about it. Vide Stephens’. History of English Criminal Law’ vol. I, pp, 47-49. Torture by the police and third-degree methods are not unknown in the 20th century in the West (even apart from the latest German methods) or in India, though they are not expressly mentioned in any text-book or Act as allowable. Vide Harry E, Barnes’ ‘Story of Punish ment’ pp. 10-15 for various kinds of tortures employed in the West for several centuries and third-degree methods (pp. 15-24), which be asserts are even now in almost universal use by the Police Department in the U. S. A. The story of Māndavya who though not a thief was held to be a thief, because he, owing to his vow of silence, did not reply whes questioned and near whom was found the booty stolen and who was impaled, is found in Adi. 63. 92-93 (cr. ed. chap. 57). Adi, 107–108 (cr. ed. chap. 101 ), Anusāsana 18. 46-50 and is Nār, (I. 42) and Br. quoted by Aparārka (p. 599). शूले मोतः पुराणपिरचोरचोरशङ्गया। अणीमाष्य इत्येवं विख्यातः सुमहायशाः ॥ आदि 63. 92-93. Kaut. IV. 8 appears to have had a different version of the story before him, The Mārkandeyapurāṇa chap. 16 has the story of Animāndavya. The story of Māndavya was a leading case, it appears, in criminal law. The Mṣcchakatika ( Act IX. 36 ) appears to refer to torture,

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ments for releasing persons jailed or for rape on a woman in a look-up. Kaut. IV. 10 prescribes alternative punishments of fines in lieu of the cutting off of fingers or mutilation of limbs for several offences such as theft or assault, abuse and defamation or showing contempt to the king by riding his horse or other conveyance or fabricating royal orders, prescribes death for selling human flesh, simple death or highest amercement for stealing images of gods or animals, for abducting human beings or for wrongfully seizing fields, houges, gold, gold coins, jewels and crops. Death with or without torture is provided for in Kaut. IV, 11 for murdering a man in a quarrel (but when the wounded man dies a fortnight or a month after the quarrel, highest fine or fine of five hundred paṇas and the expenses of medical treatment); different kinds of punishments are provided for wounding with a weapon, impalement for causing violent death of men and women, burning alive for those who aim at securing the kingdom or force entrance into the royal harem or incite wild tribes or enemies or instigate disaffection in the capital or country or army, drowning (or solitary confinement in a dark room, acc. to another reading ) for a brahmana offender of this sort, cutting of tongue for insulting or abuse of parents or a teacher or an ascetic, drowning for one destroying the dam of a tank or for a poisoner or for a woman murdering a man, tearing to death by bulls for a woman who murders her husband or child or her elders or administers poison or sets fire. Kaut. adds that the punishment of death with torture has been prescribed by ancient smrti-writers, but that it is proper to order simple death in cases of offences in which no cruelty enters. Kaut. IV. 12 starts by declaring that no man shall have sexual intercourse with a woman (not his wife ) against her will, prescribes different punishments for forcible sexual intercourse with an immature girl or a girl that has attained maturity, of the same caste, or of a different caste, provides that for inter course with a willing maiden the fine will be 54 panas for the man and 27 for the maiden, further provides that it is no offence for a man of the same caste to have intercourse with a maiden who has not been got married for three years after the appearance of menses, provides fines for deceitfulness in substitut ing one girl at marriage while showing another before, provides that if a woman whose husband is gone abroad commits .adultery a relative or servant of the husband may keep her under restraint and that if the husband on his return forgives the woman her paramour may not be proceeded against,

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but if he does not condone, the nose and ears of the woman may be cut off and the paramour should be sentenced to death. Kaut. IV. 13 provides punishment for brāhmaṇas eating or drinking what is forbidden to them and varying fines for administering forbidden food or drink to members of the four varṇas, provides fines for house-trespass and lurking house-tres pass by night, provides punishments for witchcraft, provides burning alive in a vessel for adultery with the queen and other punishments for adultery with women of the several castes, whether guarded or unguarded, prescribes a fine of 24 papas for adultery with a nun.

The above is a meagre summary of Kautilya’s section on kaptakasodhana. Kautilya is encyclopaedic on this subject as on several others. The number of offences dealt with by him is very large and his treatment in some respects compares favourably with such modern criminal codes as the Indian Penal Code, Many of the provisions contained in Kaut. IV are found in Yaj. (II. 273-304), in Nārada (in prakirṇaka and elsewhere) and also in Manu (e. g. VIII. 365-368 about rape or adultery, VIII. 396-97 about washermen and weavers, IX. 225-226 about musicians and dancers, IX. 231-232, IX. 261-267). Why Kaut. treats of several offences under kantakasodhana and not under the dharmasthiya section, it is somewhat difficult to say. It is probable that he included under dharmasthiya only those complaints or actions that were fought out between the parties, even though many of the wrongs complained of under vākpārusya, danda pārusya, sangrahana and steya were criminal and the same as those treated of in the section on kantakaśodhana. In wrongs dealt with in the kantakasodhana section it was the king or king’s officers who themselves brought up the offenders for punishment and the offences were viewed not as mere private matters, but as matters in which the State was concerned for the eradication of crime in general. Kautilya in III. 20 speaks of prakirnaka but therein he seems to include some miscellaneous matters like non-return of borrowed articles or deposits ( at the proper time and place), evading payment of ferry tax under the pretence of being a brāhmaṇa, connection with a public woman kept by another, misappropriating revenue collected as agent for a householder, a cāṇdāla’s touching an Arya woman, invit ing for dinner in honour of Gods and Manes Buddhist or Ajivaka or Sudra mendicants, abandonment of parents, child, wife or husband, brother or sister, teacher or pupil (when not

33

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guilty of a grave sin), wrongful confinement of a person &c. Kautilya does not apparently include under prakirṇaka all matters in which the king acts suo motu as Nār., Bṛ, and Kāt. do but includes these latter under kantakaśodhana. He, how ever, states here and there (IV. 1 and 13) that the matters dealt with under kantakasodhana are quite analogous to those under such titles as daṇdapāruṣya treated of under the dharmasthiya section. For example, in IV. 1. he says that if a physician through negligence causes loss of a vital part to a patient then the matter may be treated as daṇdapārusya. 333 So Kautilya probably represents a much earlier stage of judicial administra. tion than Nār. or Br., who included under prakirpaka all matters in which the king acted of his own motion (i. e. all that falls under kantakasodhana in Kaut.).

The enumeration of vyavahārapadas is very ancient and authoritative, but there is hardly any scientific principle of classification underlying them. A writer called Nibandha nakāra quoted in the Sarasvativilāsa 34 (p. 51) holds that in all the vyavahārapadas from mạādāna to dāyavibhāga the relief claimed is something to be given or rendered (deya) by one party to the other, while in vākpāruṣya, dapdapārusya, sābasa, gambling and betting the principal relief is in the form of danda (punishment). Here there is a glimmering of the dis tinction between civil and criminal litigation. Two deep-seated principles in the administration of law and justice everywhere are ‘fulfil your promises’ and ‘cause injury (himsā) to no one’. It is therefore that we find Bșhaspati stating that lawsuits are of two kinds according as they originate in (demands about) wealth or in injuries. Yāj. II. 23 speaks of arthavivāda (civil dispute) and so made a distinction between civil and criminal disputes. Lawsuits * originating in wealth are divided into

333. 1951: …… ferua face #ITH: 1 faut VTTot ftrum i Sun IV, 1; ITA 7WTABU T 379ATWYHATE CU

TCTT TT M arat quatreit fourni e IV. 13.

334. FOTOTAQ ferrujaat igniai 49ER Emaneti निधनकारेणोक्तम् ऋणादामाविवायविभागान्तानां देयनिषाधमत्वं साहसादिषशकस्य

qurumuna goraranasiai. f. p. 51.

335. fat qugTT: FUITWITHTHEFT: 1 P Hamdamra Arify: … एपमर्थसमुत्थानि पदानि तु चतर्वश । पुनरेव प्रभिक्षानि क्रियाभेदावनेकधा। पारुष्ये FITCH O UTPUT IF TYęziening gemaa: 1 fl. II. p. 9, 6. 87.p 277 (for first verse). 971. T. III. pp. 20-21; FTE TEFTES FOIENT aftra i r fht hegourage !Freyra (30) quoted in

T . II p. 13.

# 5

parere mer enn les TIENG ANH

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fourteen sorts and those originating in injuries are of four sorts These last are vākpārusya (defamation and abuse), dandapārusya (assault and battery), sāhasa (murder and other forms of violence) and strisangraha (adultery). Here there is a clear distinction made between civil disputes (arthamula or dhanamūla) and criminal ones ( hitsa-mūla). Kāt, also says that disputes have their source in two viz. not rendering what should be given and injury (hiṁsā). Though in this way a distinction was made between civil and criminal disputes among the 18 titles of law, it appears that the set of rules and the procedure in both were the same (except as to the time allowed for reply, as to the qualifica tions of witnesses and as to proxies), the same courts tried both kinds of disputes and not as in modern times when civil disputes are tried in one class of courts and criminal complaints in another and when the procedure also in both differs a great deal). There were not two sets of courts in ancient India as there were in England before the fusion of Law and Equity, but all courts in ancient and medieval India were required to administer the law of the texts tempered by common sense and reason as laid down by Bṛ.: ‘a decision should not be given by merely relying on the text of the sastra; when consideration of a matter is divorced from reason and common sense loss of dharma results’ (g. by Aparārka p. 599).

Nār. (I. 8-29), Bp., Kāt., the Agnipurana ( 253, 1-12 which reproduce almost verbatim the verses of Nār.) and others predicate several things about vyavahāra, such as that it is dviphala ( has two results ) and so on. All these are brought together here below for convenience. Vyavahāra is :

Catuspūd - having four feet, viz. dharma, 336 vyavahāra. caritra, rājaśāsana, acc. to Nār. (I. 10); while acc. to Yāj. II. 8

336. Among the verses at the end of IV. 1 of the Arthasāstra the follow ing two verses occur: **** 2 EETTE Å TIETTI Parrut: TTATA: पूर्वबाधकः तत्र सत्ये स्थितो धर्मों व्यवहारस्तु साक्षिषु।चरित्रं संग्रहे पुंसां राज्ञामाज्ञातु शास 971. These two occur in Nār. (I. 10-11) and Harita (q. in S. V. p. 58) with variations, viz. both read चतुष्पाद व्यवहारोपमुत्तर पूर्व० and चरित्र पुस्तकरणे. Par. M. III, p. 10 reads arts a French. Lengthy explanations of these verses are offered in Aparārka (p. 597), Smsticandrikā (II. pp. 10-11), Vyavahāra prakasa (pp. 7, 88–89) and other digests. It has to be noted that the four (dbarma &c.) mentioned in these verses are the means of arriving at a decision in a law-suit, as Bṛ. says: UAU &Tugirar for TTATI 041tt fra: hardArrufa: (in Fyra T. II. p. 10, TI, AT. III. p. 16, *. . p. 6); TERIT uffo Turi Fiara: Arrudcancient armreinua तदूधण्हे च व्यवहारतः प्रातेपि राजकुलाधिगतलिखिताभिवर्तते । एवं हि तत्र लिखितम्

nito fort rart

at FFI SPET P. 597 (on T. II. 17.)

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and Br. they are the plaint, the reply, the proof (kriya) and decision (nirnutya) or acc. to Kāt. 31 (q. by Aparārka p. 616) plaint, reply, prutyākalita 337 and kriya.

Dharma and the other three are really the four feet of nirṇaya (final decision), which is one of the four stages of a law-guit (vyavahāra) and so only in a secondary or far-fetched sense they are the four pādas of vyavahāra. Each of these four is said to be of two kinds. Vide Sm. C. II. pp. 10-11, Par. M. III. pp. 198–199, V. P, pp. 87-88 where the verses of Bṛ. are set out and fully explained. A decision is said to be arrived at according to dharma when the wrong-doer admits his guilt or wrong-doing and the real owner secures his wealth or the relief due to him without having to undergo the trouble of a protracted trial by means of witnesses, documents &c. Similarly a decision to be arrived at by ordeals is said to be one by dharma. Dharma and satya are often identified (vide note 125 above) and here the wrong-doer tells the truth and the decision is therefore said to be by dharma. When a litigation is fought out in Court by citing witnesses, the decision is said to be by vyavahāra. “Witnesses’ are mentioned only by way of illustration (and imply docu ments, possession and other means of proof). When a defendant is guilty of not giving a straight reply or when his reply is tainted with faults and so is unacoeptable and a decision is given against him on that ground alone it is still a decision by vyavahāra. Caritra means ’the usages of a country, village or family’ ( desasthitih pūrvakītā caritram sumudāhrtam –Vyāsa q. in Sm. C. II. p. 11 and Vy. Nir. p. 138). This seems to be the sense of ‘caritra’ in ‘phalakavāre charitratoti’ occurring in Nasik Inscription No. 12 in E. I. vol. VIII, p. 82. In prakirnaka 24 Nār. seems to give the same sense ‘sthityartham prthivipālais. caritravisayāḥ kṣtāḥ’ Caritra also means ’ anumāna ‘(posses sion and presumptions). ‘Anumānena nirnitam caritramiti kathyate’-says Br. quoted in Vy. Nirpaya p. 139 and Par. M. III. p. 198. Usages are the means of decision in certain cases apart from the question whether they are supported by the smrtis or

337. Pratyākalita means, acc. to Aparārka p. 616, the deliberation of the judge and sabhyas as to where the burden of proof (onus probandi) lies and as to the method of proof. Acc. to the Mit. on Yāj. 11. 8, pratyākalita in this sense is not a vyavahārapāda, since it is not directly related to the litigants. Acc. to Nār. II. 21 pratyākalita seems to mean an addition to the plaint or to the reply (i.e. a supplementary written statement), aerat लिखिताभोषं परपुनवादिना स्मृतम् । तत्प्रत्याकलितं नाम स्वपादे तस्य लिख्यते ॥.

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not. ‘Caritram pustakarane’ means that such usages are valid means of decision if they have been written down or recorded by the king, while ‘caritram tu svikaraṇe’ (the reading in Par. M.) means ’ usages become the rule of decision when they are accepted as valid by the people and by the courts’. When a king issues in a matter of dispute an order which is not opposed to smrtis or local usages and which is thought out as the most appropriate one by the king’s intellect or which is issued to decide a matter when the authorities on each of two sides are equally strong, it is a decision by royal command. Br. ( in Par, M. III. p. 148 ) and Kāt. (verses 35-38 q. in Sm. C. II. p. 10, Par. M. III. pp. 16-17, V. P. p.7) explain the above four. Bphaspati gives two meanings of caritra: (1) what is decided by inference ; () the usages of a country. When it is said that each later one of the four stultifies each preceding one, the idea is not that in all cases it is so, but that it is so only in some cases. Vide Kāt. ( 43 g. by V. P. p. 90 ) which makes this clear. Some examples may be given. If one litigant says that he would prove his case by an ordeal, while the other says that he will prove his contention by human means ( documents or witnesses &c.), then the trial by ordeal is not to be resorted to but the hearing of the case is to proceed in the ordinary way. Vide Kāt. 218 (q. by Mit. on Yāj. II. 22 ) for this rule. Here dharma is set aside in favour of vyavahāra. Another example is given in the Par. M. III. p. 18. A person belonging to one of the four varṇas commits a seditious act (rājadroha) and through timidity admits his guilt ( this is satya ), but the witnesses ( relying on Manu X. 130 that where the punishment would be death, a witness may tell a lie ) deny that he was guilty of the act and he is let off. Here dharma is set aside in favour of vyavahāra (trial based on the depositions of witnesses). Vide Sm. C. (II. p. 11 ) for another similar example. In the country of Kerala visiting a prostitute was not condemned by oustom. So even though it is established by witnesses that a person in Kerala did so, the local king may not punish him with a fine. Or suppose a person is charged with the offence of adultery with the wife of au ābhira and this fact is established by witnesses. Yet the man charged may show that among the abhiras there is a usage ( written down in the census records of the king ) that adultery with an abhira woman is not punish able. In such cases caritra (usage ) annuls the (ordinary) vyavahāra. But suppose that in such cases the king, in order to improve the morals of a section of his subjects, issues a262

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proclamation that from the date of the proclamation one who is guilty of adultery with an abhira woman will be punisbed, then in that case usage will be set aside by royal command, which will then be the rule of decision. Similarly where there are no witnesses nor documents nor possession and no room for ordeal and there are no texts and local usages it is the king who has to decide as best as he can. Vide Pitamaha q. in Sm. C. (IL p. 28). Kāt. (verses 39-43 q. in V. P. p. 89) describes how and when each later one sets aside each prior one.

Catusthāna-having four bages viz. satya, witnesses, pustakarana and rājaśāsana.

Catuhsādhana-having four means viz. sūma, dūna, bheda and danda.

Caturhita–benefitting the four ( the four varṇas and four asramas ).

Caturvyāpin–that envelopes or reaches four viz. the dis putants, witnesses, the sabhyas and the king.

Catuṣkārin—that brings about four results viz. dharma ( justice ), gain, renown, love or regard of the people.

Aṣtānga-.it has eight limbs or members viz., the king, his good officer (chief judge ), sabhyas ( puisne judges ), sastra (law books ), accountant, scribe, gold, fire and water.

Aṣtādaśapada-has eighteen titles (viz. rṇādāna and others enumerated above).

Sutaśakha–having a hundred branches. This is approximate. Nās. (I. 20-25 ) states that the 18 titles have 132 sub-heads (rṇādāna 25, upanidhi 6, sambhūyasamutthāna 3, dattā. pradānika 4, aśusrūsā 9, vetana 4, āsvāmivikraya %, vikrsya dāna 1, kritānuśaya 4, samayasyānapākarma 1, kṣetravāda 12, stripumsayoga 20, dāyabhāga 19, sāhasa 12, vākpāruṣya and daṇdapāruṣya 3, dyūtasamābvaya 1, prakirṇaka 6 ).

Triyoni - having three springs or motives viz, kama (sexual desire), krodha (hot temper), lobha ( greed).

Duyabhiyoga–founded on two kinds of complaint viz. on suspicion or on fact. Nār. I. 27 says that a complaint on Buspicion may be made against those who associate with men of evil repute ( such as thieves, gamblers and dissolute persons ) or it may be made on the ground that a certain person is really

III )

Different aspects of vyavahāra

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the thief because the thing stolen is found with him (this is tattvābhiyoga). This latter may take two forms i.e. the grievance of the plaintiff may be negative (e. g. the defendant took or borrowed a debt or article and does not return it ) or positive (e. g. the defendant has dispossessed the plaintiff of land ).338 Vide Mit. on Yāj. II. 5.

Dvidvāra-having two openings i. e. it is based on the statements in the plaint and those in the reply.

Dvigati –having two issues, that is, the decision may be founded on truth or on error.

Dvipada-having two aspects, viz. relating to wealth and so civil (dhanamūla), and relating to injury and so criminal (hiṁsāmūla). This is acc. to Kāt. 29.

Dvirutthāna “having two springs or sources. It is the same as above. Hārita and Kāt. 30 mention this.

Duiskandha-having two trunks viz. dharmaśāstra and arthaśāstra (acc. to Kāt. 32).

Driphala–having two results, victory or failure ( Kāt. 32 ).

Ekamūla—Hārita and Kāt. mention this. It means ‘having only one ( viz. what is to be established) as its root’.

Sapana and apanamwhere both parties to the litigation or one of the parties stakes (either through pride or anger or belief in the truth of his case ) a certain sum of money to be paid by him in case of his defeat, that is called sapana law-suit ( Yāj. II. 18); in this case the defeated party will pay to the king the usual fine for a defeated party and also the sum staked by him and will deliver to the successful party what is due to him. Vide also Viṣṇudharmottara III. 324, 44. A lawsuit may also be apaṇa (without a stake being declared). Nār. (I. 4) employs the words sottara and anuttara for these two.

The Sm. C. (II. pp. 27-28), Par. M. (III. pp. 42-45), Sarasvati vilāsa pp. 73-74, V. P. pp. 36-38, state that, according to Pita maha, the king may take cognizance of his own motion without

the

___338. न्यायं मे नेच्छते कर्तुमन्यायं वा करोति चीन लेखपति यस्त्वं तस्य पक्षो न FETTA II FEAT. q. by ra ( on TT. II. 6), FR , II. p. 39, PATT. OD T. II. 5. ‘भ्यायागतं मदीयं धनं गृहीत्वा न ददातीतिवत् प्रतिषेधरूपेण वा मदीयं क्षेत्रा f etat e para T 07 erau llway. II. p. 39.

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the complaints of private persons of certain matters called (pa rādhas, padas and chulus and these works set out the lists of ten aparādhas, 22 padas and 50 chalas 339 The king may himself come to know about these or these matters may be brought to his notice by an officer called sūcaka or a private man called stobhaka, defined acc. to Kāt. ( 33-34 ) as follows:- 340 that man is declared to be sūcaku who is appointed by the king himself for finding out the wrong-doings of people and who on coming to know of them conveys them to the king; that man is a stobhaka who with a sole eye to money and without being urged by the king informs the king first of actions (among the people) that are condemned by the śāstras.’ Therefore a stobhaka is a private informant for money. The ten aparādhas, acc. to Nār, are: disobedience of the king’s order, murder of a woman, confusion of varṇas, adultery, theft, pregnancy from one not the husband, abuse and defamation, obscenity, assault ( danda pārusya), abortion 341. They were called aparādhas because they were met with fine. It will be noticed that some of these come under several vyavahārapadas and some like ‘varṇasankara’ are included in prakirṇaka by Nārada (v.4). The king could by his own action investigate these even if no private complaint he lodged. Samvarta (quoted by the Sm. C. II. p. 28, Par, M. III. pp. 44-45) gives another list which differs in some respects from the above. In the Nalandā copperplate of Devapāladeva (E. I vol. XVII p. 310, p. 321 ) an officer called ‘dasāparādhika’ is mentioned. In many grants from the 7th century onwards among the taxes remitted to the donees we often meet the ex pression ’together with the ten aparādhas’ (sadasāparādbah’, in Valabhi grant of Dhruvasena Ill dated saṁyat 334 i. e. 653-4 A.D., E. I. vol. I p. 85, at p. 88, E.I. XVII p. 310 at p. 321, in Gupta Ins. No. 39 p. 179 of 766-767 A, D.), or ‘daśāparādhādisamastot pattisahito dattah’(in E. I. vol. VII p. 26, p. 40 of sake 852), or

339. Ja arriut qatrat quatret i MVĀT reures TETT I WENTAE g. in ay II. p. 27, UTT. AT. III. p. 42.

340. The Art ou great time : 1 yra pagrin Fanta: # उदाहतः ॥ सुपेणैव नियुक्तो यः परदोषमवेक्षितम् । तपस्य चयेज्ज्ञारवा चकः स उदाहतः ।

TEUTTA q. io fufcere III. p. 28 (reads regurgeliqu:), PTT AT. III. p. 45 (reads स्पर्थ मुख्यधार्थ and सुपस्य समयं ज्ञावा), व्य. प्र. p. 38 (reads Trampo).

341. Fuaart:

I PETITAM Sto r gra fata # 914916RF TaurarSeaHere I Teatreurer II ATE 4. in FA. II. p. 28, TTT. #1. III. p. 44, . fut. p. 73, preferation of te p. 12.

m)

Meaning of aparādha.

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Badandadaśāparādhaḥ! (E. I. vol. III p. 53 at p. 56, Torkhede plate of Govinda in sake 735, and E. 1 vol. III p. 263, 266, the Rajor inscription of Mathanadeva dated Vikrama samvat 1016). It is not correct to hold that the words refer to the right of the donee to be exempt from guilt arising from the commission of some traditional offences or that authority was conferred by the grant on the donee to deal with offenders committing the ten aparādhas and to recover the fines imposed by themselves (as suggested in J BORS for 1916 p. 53n). No king would ever think of exempting donees in pious gifts or the villages in those grants from the results of such grave aparādhas as the murder of a woman, adultery, theft and abortion, nor is it possible to hold that a king authorised a private individual or individuals to exercise judicial power in such crimes as murder when (as we shall see later on) the power of dealing with sāhasa was not conferred on sreni or gana tribunals. The real meaning appears to be that the fines levied by him for the commission of the aparādhas in the villages granted would be made over to the donees as part of the gift, when recovered by the king. The 22 vadas were called padas of the king to distinguish them from the vyavahārapadas. According to Pitāmaha 342 they are: ripping open an animal’s body (with a sharp weapon), destruction of growing crops, incendiarism, rape of a maiden, concealment of treasure trove, making a breach in an embankment or thorny hedge, grazing cattle over the field of another, destruction of a public garden, poisoning, high treason, unauthorised break ing of the royal seal, divulging the secret line of policy of the king, releasing from jail a prisoner, appropriation of the taxes or fines to be levied by the king ( these are two), appropriating gifts (made by the king) or the utseka

342. vifi #uuret ruitau ade paraft #17TT ForatūTTO गोपः । सेतुकण्डकभेसा च क्षेत्रसञ्चारकस्तथा। आरामच्छेदकश्चैव गरवश्च तथैव च ॥राजो बोहमकर्ता च तन्मुदाभेदकस्तथा । तम्मन्त्रस्य प्रभेत्ता च बद्धस्यैव च मोचका ॥ भोगवण्डी बगहाति दानमुत्सेकमेव (१ मुत्सर्गमेष) च । पटहापोषणाच्छादी ग्यमस्वामिक व पत्। राजावलीढं प्राय पपच्छेवाङ्गविनाशनम् । द्वाविंशति पदाण्याहुर्सपशेषानि पण्डिताः ॥ Ferrar. II. p. 28, T1. 51. III. p. 45, fr. fat. p. 73, 7.9 p. 37. The passage is somewhat corrupt ; # a. gives a summary in prose and begins with धिकाति:, while the rest read उत्कर्ती or उत्कृती. ग्य.. and qण्डनीतिमकरण p. 12 reads art fa TT (which would weaa ‘appropriating a gift or property sold by the king’). . ..

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( ? utsarga, dedication to the public ), preventing the proclama tion (of royal orders) by beat of drum from being heard, receiving property from a person who is not the owner, receiving articles that are enjoyed by the king (without his permission), causing destruction (or loss ) of any one of the (seven) elements ( of the State ). The fifty chalas were mostly breaches of etiquette before the eyes or in the presence of the king. According to Pitamaha they are: obstructing the road, raising the hand threateningly, leaping over a fort-wall ( without permission or reason ), destroying a cistern, destroying a temple, filling up a ditch ( dug round a fort ), divulging the weak points of the king (to the enemy), unauthorized entrance into the harem or royal chamber or the treasury or the royal kitchen (these are four), prying when the king is taking his meals, voiding ordure or urinating or blowing the nose or passing wind in the presence of the king ( these are four ), to sit before the king on haunches (paryankāsana), to occupy the foremost seat in the king’s presence, to enter royal presence in a dress more resplendent than the king’s or supported by another or by the wrong-daer or at an improper time (these are four), to lie down on the bed or seat of the king or to put on his shoes ( these are three ), to go near the king (unoalled) when the latter is lying down on his bed, to serve the king’s enemies, to occupy a seat that is not offered, to use gold in the dress or ornaments (these are two), to take tāmbūla (from the king’s betel box ) and chewing it ( this is one ), to speak loudly without being asked (by the king ), to run down the king, to wear only one garment, to appear before the king with oil on the hair, to untie the hair ( before him ), to cover one’s face, to have a body painted with figures, to wear a garland, to shake one’s garment, to cover the head, to be bent on finding the weak points of the king, to be thick with evil men (or to touch the king ), to have dishevelled hair, pointing out the nose, the bars and the eyes ( these are three ), to pick the teeth, to cleanse the ear or the nose ( these are two). As the list of chalas is a very long one the verses are not quoted below, but are given in the Appendix (note 34% a). Sukra (IV, 5.73-88 ) quotes all the verses from Narada and Pitāmaha on the aparādhas, padas and chalas and in III, 6 also gives a list of ten sins, which is different from that of the aparādhas.

• In modern works on Jurisprudence various classifications of Law are stated. For example, Dr. E. Jenks in New Juris prudence ’ ( 1933 ) furnishes at the end of his work & pery

Law

nI ]

Public

Private

Conflict of Laws

Normal persops

Aboormal persons

in Public Law

in Private Law

Const, Law

Admn. Law

Indus.

Crimi.

Mili.

Family

Law

Law of

Property

Obliga

tions

Success

sion

Søb. Pro. Sub. Pro. Sub. Pro. Sub. Pro. Sub. Pro.

tion. Ancient Hindu smṛtis were content, as shown above, to Ancient systems cannot be expected to present such a classifica elaborate classification which is set out in the note below. 343

Classification of Laws

Substantive

Procedural

normal persons

normal persons

abnormal persons

Family Law

Law of Property

Law of obligations

Succession

immovable

chattels incorporeall

Fushand

Wife

Parent &

Child

Guardian

& Ward

testamentary

intestate

Civil

Commercial

I

Contract

Quasi-contract

Tort

Contract

Quasi-contract

Tort

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divide the vyavahārapadas into civil and criminal. They more or less deal with most of the subjects brought out in modern classifications but not in an orderly manner They also divide laws into substantive and adjeotive or procedural. The vyava harapadas correspond to the former and the rules about procedure, the appointment of Judges and the constitution of courts, evidence and limitation are adjective law. Some of these are dealt with in the commentaries and digests under a section called vyavahāramātīkā (the elements of judicial proce dure ) and the rules of evidence are stated in Yāj., Nār, and others under the vyavahārapada ļṇādāna once alone. It would be more convenient to deal with adjective law first. That law is now of antiquarian or academic interest only and will there fore be treated somewhat briefly. The smrtis lay down a high level of judicial procedure, but the procedure must have been modified to suit the requirements of different times and the resources and inclinations of different kings. Some of the vyavahārapadas viz. mnādana ( recovery of debt ), strīpunsayoga and dāyabhāga (partition of heritage) are of great practical importance even now, as all Hindus are governed in matters of partition, inheritance, debts, marriage and sonship by the rules of Hindu Law gathered from the Smṛtis and digests as modified by legislative enactments and judicial decisions. For descrip tion of Judicial administration in the Buddhist texts and times, vide Fick pp. 107, 111-112 ( which show that the administration of justice in Vesāli, the capital of the Licchavis, was a complicated affair, one of the courts being that of the atthakulakas i. e, of eight heads of families ), Jayaswal’s ‘Hindu Polity’, part II pp. 156-157, Hiouen Thsang’s account in Beal’s B.R. W.W. Vol. I. pp. 84-85; and Bombay Gazetteer, Vol. 24 pp. 266-267 (for the administration of Justice under the Marathas ).

Justice was to be primarily dispensed by the king. He was an original court as well as an appellate tribunal. Smrtis and digests insist that the king cannot dispense justice by him self alone, but must do so with the help and guidance of others. Manu VIII 1-2 and Y&j. II. 1 provide that the king wearing no gaudy dress or ornaments is to enter the sabha (the Hall of Justice ) for looking into the causes of litigants, accompanied by learned brāhmaṇas and ministers proficient in statecraft, is to be free from hot temper and greed and decide according to the law laid down in dharmaśāstras. Kāt. (55-56 quoted in V. M. p. 278, Mft. Op Yāj. II. 2) says the same thing and adds that

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a king who examines disputes in the presence of the Judge, the ministers, learned brāhmaṇas, the purohita and the sabhyas attains heaven. Vide Sukra IV. 5. 5 to the same effect (taking half verses from Yāj. and Kāt.). The king was not to decide by himself but was to follow the advice of his judge, though the responsibility even when he took advice was the king’s. Vide Sukra IV, 5.6 (naikah pasyecca kāryāni). Nār. I. 35 says that the king has to abide by the view of the judge (prāduiva kamate sthitah). This sentiment that it is not safe for a single man, however clever he may be, to undertake to decide a dispute was so ingrained among all people that Kālidāsa gives expres sion to it in the Mālavikāgnimitra (Act I) when he pens the sentence ‘sarvajñasyāpyekākino nirpayābhyupagamo doṣaya’. In Raghuvamsa 17.39, Kālidāsa states that king Atithi always looked into the causes of people himself with the help of judges (dharmastha) 34. Pitamaha 345 states that a person even if he knows the rules (of dharma) should not give a decision single handed. Justice was to be dispensed openly in the court and not secretly. Sukra (IV. 5. 6-7) states 346 that neither the king nor the judge nor the sabhyas were to hear a cause in secret and that there were five reasons that led to the charge of partiality in judges viz. hot temper, greed, threats, enmity and hearing disputes in private. Judicial action is divisible into two pro vinces, viz. that of law and that of fact. The latter is a field in which it is impossible to lay down rules for determination. On points of facts there was a vast scope for the king’s or judge’s discretion. And therefore the texts contented themselves by saying that the king or judge should keep an open or impartial mind, should be free from hot temper or greed, should hear causes under the glare of public view and should not decide at his own will alone but with the help of learned brāhmanas and sabhyas. As regards points of law the king or judge is

344. # FF Prūrciò ai i Taraf #rey1 487a man: # TI 17.39. The word aru used here for judges may be noted. Kauṭ, uses the same word in III. 1. From a detailed examination of the Raghuvamsa it appears very probable that Kalidasa had closely studied Kautilya’s Arthasastra.

___345. तस्माल वाच्य मेकम विधिज्ञेमापि धर्मतः इति पितामदेन एकस्य धर्मकभननिये

ft. p. 67. 346.. नैका पश्येच कार्याणि वादिनःण्याइमा रहसि च सुपा माज्ञा सम्याश्चैव कदाचन । प्रक्षपाताधिरोपस्प कारणानि च पाये। रामलोभमपदेषा धादिमोच रहाभुतिः ॥

T. IV. 5. 6-7,

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required to decide according to the rules of dharmasastra (Manu VII. 3., Yāj. II. 1, Nār. I. 37, Sukra IV. 5. 11) and where there are no texts the king should decide in accordance with the re cognized custom of the country. Kāt. solemnly warns 34? the king against legislating or deciding according to his own will in the face of the texts: “If a king decides (a case) by his own fiat where there is a text (of the śāstra applicable to it) it leads him away from heaven, it causes ruin to the people, it brings danger ( to the king ) from the armies of his foes and it strikes down the roots of (long) life; therefore a king should decide the causes of people according to the rules of śāstra ; but in the absence of smrti texts he should carry out (judicial adminis tration) according to the usages (lit. the views) of the country’. These are the same as Sukra (V. 5. 10-11). Kāt. further pres cribes that the usages established in a country by the approval of its people and that are not in direct conflict with Veda and Smrtis should be recorded in writing under the seal of the king. Pitamaha 348 quoted by the Sm. O. (II. p. 26) states that in certain cases it is the king’s own mind that is the deciding

factor.

How the king directly dispensed justice is illustrated by the rules of Gaut. XII. 40-42 and Manu VIII. 314-316 that a thief who has stolen a brāhmaṇa’s gold may run with dishevelled hair to the king carrying an iron club or a heavy bludgeon of khadira wood, may declare the sin committed by him and request the king to award punishment, that the king may then strike him with the club and that whether the thief dies or lives after the king so strikes him he becomes free from the guilt. The king was also the highest court of appeal. The Rājatarangini (VI. 14-41) states how king Yasaskara heard the appeal of a person who had sold his house without the well, who on returning

347. Seraf starfire Tafra ni surgaieti Tit ala 97ee frū कृतिः । तस्माच्छाबासारेण राजा कार्याणि कारयेत् । वाक्याभावे तु सर्वेषां देशहष्टेन तन ta 11 FTE91, q. by storm p. 599, prae. II. pp. 25-26, 001, . III. p. 41,

348. IV, 5.10-11 are the same as kreat. TEU QUATEU hr U: 79:

A S FII सुतिस्मुत्पविरोधेन देशातः स उच्यते । देशस्यानुमतेनेव व्यवस्था या निरूपिता। लिखिता तु Har wat awr RTT # 7777. q. in Frag. II. p. 26, otr. AT. III. p. 41. Vide #9. 8. 3 for ante.

348. पत्र चैते हेतपो न विद्यते तत्र पार्थिवषचनाजिर्णय इत्याह स एव (पितामह एप) । लेख्य पत्र विवेतन भुक्तिर्न साक्षिणः। सच दिग्पावतारोस्ति प्रमाण तत्र पार्थिवः । नितं येन शक्याः स्युदा सन्दिग्धरूपिणः । तेषां चुपः ममाण स्थात् स सर्वस्प

ta: Il FTRU # II, p. 26.

The king as appellato court

971

from a long absence abroad found the well usurped by the vendee and was defeated in the lower courts because the vendee had bribed the scribe to write ‘kūpasahita’ instead of’ktiparahita’ and how the king decided in the man’s favour by exposing the vendee with a trick; while in VI. 42-69 the same king is said to have reversed another decision about a contract by a man whose 100 coins had fallen into a well. The same work in another place (IV. 82-108) states how a brāhmaṇa wife appealed to the king of Kashmir to find out the culprit who had murdered her husband in his sleep and how the king by superhuman means held a sorcerer to be the murderer.

When owing to pressure of other weighty business the king cannot attend to the work of administering justice, the king should appoint a learned brāhmana together with three sabhyas to decide the disputes of people. Vide Manu VIII. 9-10, Yāj. II. 3, Kāt. 63 349 (same as Sukra IV. 5. 12). The qualifica tions of a judge are set out in many places. Ap. 350 Dh. S. II. 11. 29. 5 prescribes that in law-suits judges shall be endowed with learning, good family, and should be old, clever, and careful about dharma. Nār. requires : ’ The Judge should be proficient in the texts on the eighteen titles of law, their 8000 sub-heads, in logic (ānvikṣiki) and should be master of the Veda and Smṛtis. Just as a physician takes out from the body an iron dart by the employ ment of surgical instruments, so a judge should extricate from a law-suit the deceit (underlying it)!. 351 Kāt. says that a judge should be restrained, born of a good family, impartial, not repellent (or harsh in his manners ), steady, afraid of the next world, highly religious, assiduous and free from hot temper. A fine enumeration of the qualities required in a judge is given in the ancient drama Mșcchakatika ( LX. 4). Vide Mānasollāsa

349, MT garera: i faptrici TT PET Pagain foro 1779 1 gram S14 #XFFURT fourni are i5 THTRUE fa# !! Frut. quoted in 19. AT. p. 279, farar II. p. 16, 7. C. p. 18 (first verse), FANT. OD TI. II. . (2nd verse), durant D. 196. IV, 5. 12-13. Some read as gerai

350. विवादै विद्याभिजनसम्पमा पद्धा मेधाधिनो धर्मग्यविनिपातिमः । आप. ध. II. 11. 29. 3.

351. Helenama TEHERE I Arhuarasi harga परायणः॥ यथा शल्य भिषायादुखरेपन्नयुक्तिभिः । पाइविषाकस्तथा शल्यमुद्धरेयष TAT: ff Trg: in frate Il. p. 14. The 2nd is E (III. 16). It is quoted as it’s in it. A 19. .. .272

History of Dharmasastra:

IVol.

II. 2 verses 93-94. AJudge. was generally styled pradertaka or sometimes dharmādhyaksa (as in Raj. “R. p. 18), 352 or dharma pravaktr ( Manu VIII. 20) or dharmādhikarin (as in Manasollasa II. 2. verse 93). Pradvivāka is an ancient word. It occurs in Gaut. XIII. 26, 27 and 31, Nar.53 (I. 35), Brhaspati (q. by Apararka p. 602). The word is a combination of ‘prad.’ (one who puts questions to the suitors, from the root pracch ‘) and * vivāka’ (who speaks out or analyses the truth, from the root * vac’ with ‘vi’). The derivation is given by Nār., Bphaspati, Kāt. 68 and others. The word ‘praśnavivāka’ (which is quite close to prād vivāka in sense and etymology ) goes very far into antiquity and occurs in Vāj. S. XXX. 10 and Tai. Br. IIJ. 5. 6. The existence of the word prādvivāka as early as Gautama (about 500 B.C.) and of prasnavivaka in the Vaj. S. and Tai. Br. clearly establishes that in anoient India judicial functions became separated very early from executive or political functions.

The chief Judge was preferably to be a learned brāhmana (Manu VIII. 9, Yaj. II. 3). Kat. (67)354 and Sukra IV. 5.14 prescribe that, if a learned brāhmaṇa cannot be had for the post of the chief judge, then a kṣatriya or a vaiśya who knows the

352. स्मृतिः । कुलशीलगुणोपेतः सत्यधर्मपरायणः । प्रवीण: पेशलो दक्षो धर्माध्यक्षो विधीयते । राज.. p. 18.

353. विवादसश्रित धर्म पृच्छति प्रकृतं मतम् । विवेचयति यस्तस्मात्माविवाफस्ततः स्मृतः ॥ नारद q. in स्मृतिच० II. p. 14; व्यवहाराश्रितं प्रभं पृच्छति माहिति स्थितिः। विवेचयति यस्तस्मिन् प्राविधाकस्ततः स्मुसः ॥ कात्या. in व्य.मा. p. 274. अपरार्क p. 602 quotes this as from वृहस्पति. Theमिवाon या. II. 3 derives’अप्रित्यर्थिनी पृच्छतीति माद तयावचन विरुद्धमविरुद्ध च सन्यैः सह विधिमक्ति विवेचयति वेति विषाकः । माद चासो विवाफश्व भादविधाक:’. पूर्वोत्तरपक्षी पृच्छवीति प्राद् निर्णयं विशेषेण प्रवक्तीति विधाक इति पोगिकी तस्य संज्ञा । प्राइविधाक इति पृषोदरादित्वासाधुः । स पि. p. 64. Vide अपरार्क p. 602 and राज… p. 18 for another verse of वृहस्पति ‘विवादे पृच्छति’ and मिता. on या. II. 3. and राज. . p.19 for a verse of प्यास on the derivation of प्राविधाक. Vide शुक्र IV. 5.66 for the derivation of विषाक from the root विष or पच्. मर्यादायै प्रश्नविवाकम् । वाज. सं. xxx. 10.

.354.. ब्राह्मणो यत्र न स्यातु क्षत्रिय तत्र योजयेत् । वैश्य या धर्मशानशं शुद्धं योग वर्जयेत् ॥ काल्या. q. by मिता० (on या. II. 31, अपरार्क p. 601, ग्य. मा. 279, राज… p. 23, सतिच. II. p. 17. The सतिष II. p. 17 cites another verse where the first quarter is पत्र विमोन विद्वान् स्यात् and the other three are the same as above. शुक्र IV. 3. 14 (पदा विप्रोन विद्वान् ) is the same as this. दायास IV. 44 defines प्राणष (which occurs in म VIII. 20) ‘गर्भाधानादिभिर्मन्त्रैदोपनयनेन

नापापयति माधीते स भवेन्माण : कुल्लूक on मह VII. 85 axplains घोसाणा विचारत आत्मानं गाणं गीति समागणवः . . .

III)

Who was to be a judge

273 dharmasastras may be appointed, but the king should carefully avoid appointing a sūdra as a judge. Manu VIII. 20 says that the king may prefer a brāhmaṇa who is not learned and main tains himself by the more fact of his caste, but should never have a śūdra as the expounder of dharma and that the country whose king has a sūdra as judge to expound dharma comes to ruin as a cow sinks in mud. Vyāsa (q. in S. V. p. 65 ) is to the same effect. Manu (VII. 10-11), Yāj. (II. 3;), Nār. (II. 4) and Sukra IV. 5. 17 state that the king should appoint at least three sabhyas ( puisne judges or members of the court of justice ) to associate with the Chief Judge in the disposal of suits ( the idea being that three are the least number of sabhyas to be appointed). Kaut. (II. 1) prescribes that the courts called ’ dharmasthiya’ should be manned by three judges called dharmasthas who should possess the qualifications and status of amātyas and that such courts should be established on the borders of the provinces, for a group of ten villages ( sairahana), for a district ( dronamukha, 400 villages) and provinces ( sthaniya, 800 villages ). Bphaspati says 35 that the sabhyas may be seven, five or three. As in the case of the chief judge, the sabhyas should be preferably brāhmaṇas, but they may be ksatriyas or vaisyas. Manu ( VIII. 11 ) and Br. say that when in a sabhā three brāhmaṇas learned in the Vedas sit along with the chief judge appointed by the king that is like the sabha of Brahmā or it is like a sacrifice. Yāj. II. 2, Viṣṇudharmasūtra III. 74, Kāt. 57, Nār. III. 4-5, Sukra IV. 5. 16-17 and others require the following qualifications in the sabhyas: they should be endowed with the study of the Vedas, should know dharma śāstra, should speak the truth, should be impartial to friend or foe, should be steady, devoted to their work, intelligent, here ditary, proficient 356 in arthaśāstra. Impartiality in the king and the judges is insisted on in the texts. Vide Vas. 16. 3-5, Nār. (I. 34, III. 5). The king was not to appoint as sabhyas those who were ignorant of the usages of the country, who were atheists and devoid of the study of śāstras, who were either puffed up, hot-tempered, greedy or distressed (Br. g. in Sm. C.

AT: FCTatra pri Trafaret foran yo # - Eft F # fe quoted in free II. p. 15. It is also ** IV. 5. 26.

356. a : putem: STATIST : I was under det frames FR47. g. by FANTO (on up. II. 2). 47. AT. p. 278, faro II. p. 15; MET धनवन्तश्च धर्मज्ञाः सत्यवादिनः । सर्वशात्रामवीणाश्व सम्पाः कार्या द्विजोतमाः । कात्या.. by 1467 p. 601, ther. T. p. 23. Vide et far 83.2 for progus,

35

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II. p. 15). The chief justice (prādvivāka) with the sabhyas constituted the Court, being appointed ( niyulta) by the king. It was stated above that the king was to enter the Hall of Justice with the chief justice, sabhyas and brāhmaṇas. The distinction is that sabhyas were appointed by the king as judges, while brāhmaṇas were persons who were well-versed in dharmaśāstra, who could attend the Court, though not appointed (aniyukta ) and whose opinions on difficult points of law were respectfully received by the judges. They (the learned brahmaṇas ) were in the position of amicus curiæ, All and sundry were not to intermeddle in trials before the court, but only those who were learned in dharmaśāstra were allowed to express their opinions on knotty points. Vide 357 Mit. on Yāj. II. 2. Manu VIII. 12-14 ( same as Nār. III. 8-10 in a different order ) say that either a person should not enter a sabhā or if he enters should say what is proper, that a man remaining silent or declaring what is false becomes a sinner and that, where in spite of the opinion of some or all sabhyas, justice is not done by the king, they become participators in the king’s guilt. Kāt. (74-78) makes it the duty of the sabhyas to bring round a king gradually to the right path when the king is about to start on the path of injustice and to state the true decision. 358 In the case of the brāhmaṇas their duty ends with stating the rule according to the śāstras; they have not, like the sabhyas, to prevent the king from doing the wrong thing or to bring him round to the path of right and justice. Nār. (III. 1) states elsewhere that one who is not appointed by the king should not interfere by his speech in the decision of a case and that if he does so he would be fined. This applies to the people that are present in the court to see the trial or that accompany the litigants. It has no application to learned brāhmaṇas, who though not appointed by the king, can state their view of the law, 359 Vide Vyavahārasāra pp. 16–17. Nār. III. 17 requires that all the judges of the Court should give a unanimous decision, and that then only the decision leaves no grievance (in the

357. TITTENUTI DATI FATHETETYT TO HE: I THAT, ON T. II. 2.

358. Orariana e gra STUTT HTHą: 1 asfa na RTTAIT nura: शनेपा । अधर्माय पदा राजा नियुखीत विवादिनाम् । विज्ञाप्य तुपति सम्यस्तदाकार्य faguretat 7. q. in fauo II. p. 21, 16. t. pp. 24–25. . 359. नियुक्तो वानियुक्तो वा धर्मज्ञो वक्तुमर्हति । देवीं वाचं सपति यः शानमुपजी. Mai TEE III. 2(= IV. 5. 28.)

Concerning judges

275

mind of the litigants ). 360 The V. P. (p. 27 ) states, following Jaimini XII. 2. 22, that the opinion of the majority of sabhyas is to prevail. 36 According to Gaut. 362 XI. 25 as interpreted by Aparārka p. 599, if there is a difference of opinion among the judges, the king is to seek the advice of those who are learned in the three Vedas ( along with the other vidyās ) and decide the matter finally. Kāt. (58-59) states that the court of justice should have associated with the task of deciding disputes some merchants who belong to a guild, who are men of good family and character, of mature age, endowed with wealth and decent conduct and free from malice. The Mit. and Sm. C. say that this is done to placate the common people in the country. *3 This also shows the growing importance of the moneyed classes and of traders. In the Mrcchakatika a śreṣthin and a kāyastha are associated with the Judge.

The chief judge and the sabhyag364 were not to hold conver. sation in private with any one of the litigants while the suit was pending and if they did so they were liable to be fined (Kāt. 70). Kaut. IV. 9 prescribes fines and even corporal punishments for judges (dharmasthas) and pradestrs who corruptly give wrong decisions, cause loss or sentence to corporal punishment. If the sabhyas 365 give a decision, which is opposed to smrti and usage, through friendship, greed or fear, each was liable to be fined twice as much as the fine to be paid by the defeated party (Yaj. II. 4, Nar. I. 67, Kat, 79-80), The Viṣṇu Dh. S. V. 180 and Br. prescribe banishment and forfeiture of all property for

360. यत्र सम्यो जनः सर्वः साध्वेतदिति मन्यते । स निःशल्यो षिवादः स्यात् सशल्यः स्थादतोन्यथा ॥ नारद (III. 17).

____361. संख्यावैषम्ये तु भूयोल्पविरोधे भूषसा स्यात्सधर्मत्वमिति न्यायेन विप्रतिपत्ता धिकसंख्यावचनमादरणीय गुणसाम्ये । व्य. प्र. p. 27. जैमिनि’s sutra (XII. 2.22) is विप्रतिषिद्धधर्माणां समवाये भूयसा स्यात्सधर्मस्वम् । . 362. विप्रतिपसौ वैविधवृद्धेभ्यः प्रत्यवाहत्य निष्ठा गमयेत् । गौ. XI. 25%; विचार. काणामन्योन्यविप्रतिपसौ धिधवृद्धेम्पः समधिगतचतुर्दशषिग्रास्थानेभ्यो न्याय प्रत्यबहत्या पगम्य व्यवहारं निष्ठां समातिं निर्णयं गमयेत् । अपरार्क p. 599. ___ 363. कुलशीलवयोगसवित्तवनिरमस्सरैः । पणिग्भिः स्यात्कतिपयैः कुलभूतैरपिष्ठितम् ॥ श्रोतारो पणिजस्तत्र कर्तग्या न्यायदर्शिनः । कात्या. quoted by मिता. (on या. p. 2), स्मृतिच. II. p. 17, परा. मा. III. p. 31, य. म. p. 31 (which explains कुलभू: as बझैः).

___364. अनिर्णीत तु यद्यर्थे सम्भाषेत रहोधिना। प्राइविवाकोथ वयः स्थासम्पाय विशेषतः ॥ कात्या. प. by अपरार्क p. 604, ध्य. मा. p. 283, परा.मा. III. 35.

365. स्नेहादज्ञानतो पापि लोभावा मोहतोपि वा । तत्र सग्योऽपिथावादी वयोड सभ्यः सतो हिसः॥ कात्या. q. by अपरार्क p. 603, स्मृतिच. II. p. 22.

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sabhyas that give an unjust decision or take bribes. Kat. 81 prescribes that the loss caused by the fault of sabhyas must be made good by them to the losing party, but the decision given by them will stand 36, Sukra (IV.5, 63-64) prescribes the punish ment of a thief for a lekhaka (a scribe) taking down a different deposition from the one actually given or for a sabhya making use of such a deposition knowingly; IV.5.93 prescribes fine and removal from office if a sabhya gives a wrong decision through greed &c. and IV, 5. 282 prescribes a fine of 1000 panas against a judge giving a corrupt decision. There must have been a few cases of judges taking bribes in ancient India as in modern times (even Lord Bacon in the 17th century was found guilty of taking bribes as Lord Chancellor and confessed his guilt). In the Daśakumāracarita 367 (VIII. p. 131) the cynical jester Vihārabhadra says to his king that judges decide matters just as they please after taking bribes and the king thereby incurs in famy and the sin of doing injustice. It was believed that when & just decision was given, the king and the sabhyas became free from sin, the sin reaches him only who is guilty (whether plaintiff or defendant); but where an unjust decision is rendered & quarter of the sin falls on the litigant (plaintiff or defendant) who is guilty of adharma, one quarter each on the witnesses, the Babhyas and the king. The Baud. Dh. S. 1.‘10. 30-31, Manu VIII. 18-19, Nār. (III. 12-13) have the same two verses. The Vyava hāratattva (p. 200) says that Hārīta also had the same verses. In the Mattavilāsa-prahasana (pp. 23-24) reference is made to the giving of bribes to the presiding officers of courts ( we should read adhikarana-karanikānām’ instead of ‘– kāruṇikānām). Kaut. IV, 4 makes it a duty of the samāhartto employ spies in various disguises to test the honesty of judges (dharmasthas) and magistrates (pradeṣtrs) and, if they were found to be ready to succumb to bribes, to order their banishment.

As to sabhā, vide pp. 92-93 above. The Nirukta (III. 5) in explaining Rg. I. 124. 7 (gartārug-iva sanaye dhanānām) states that gartā means a wooden board or stump in a sabhā on which a sonless widow claiming her husband’s wealth had to stand when claiming it.

366. Fryetary TW I TTET I forrar fara ofrer a 1641. q. by Fa. II. p. 23, F. f. p. 69.

367. Peterot r at SATIN TUAM of: * ferat तत्रापि प्राइदिवाकादपः स्वेच्छया जयपराजयो विदधानाः पापेनाकी च भरिमारमा

forfor i 1911 VIII, p. 131.

Different courts of justice

277

A court of justice was (acc. to Br. 368) of four kinds, viz. one established (pratiṣthitā) in a fixed place such as a town, apratiṣthita (not fixed in one place, but moving from place to place as on a circuit), mudritā (the court of a judge appointed by the king, who is authorised to use the royal seal), sāsitā (or śāstritā, acc. to S. V. p. 68 and Par. M. III. p. 24) i. e. the court in which the king himself presides. The Court of justice ( in the capital) was to be to the east of the palace as stated by Saṅkha and Bp. (in Sm, C. II. p. 19) and was to face the east. The court-house should be decorated 369 with flowers, statues, paintings, idols of gods and should be furnished with incense, throne or seat (for the king or judge), seeds, fire and water (Br. in Sm. C. II. p. 19). The sabhā was also called, as stated above, dharmadhikarana or simply adhikaraña (in Mrcchakatika IX and the Kādambarī, para 85 ) or dharmasthana or dharmāsana or sadas (Vas. 16.2). The Kādambari (para 85 ) speaks of the royal palace as having a court of justice where the judges (dharmādhikārins ) sat on high cane seats. The time for holding the court is the morning, aco. to Manu VII. 145, Yāj. I. 327. Kaut. states that the king 370 should look into the disputes of people in the 2nd part of the day divided into eight parts. The Dasakumāracarita (note 367 above) shows the same thing. Kāt. (61-62) prescribes that the time for holding the court as laid down in the sāstras is three parts of the day after the first part (when the day is divided into eight parts) i. e. from 7-30 A. M. to noon. There were holidays on which courts were closed i. e. on 8th and 14th tithis, Full Moon day and the amāvāsyā of every month (Samvarta acc. to Par. M. III. p. 23, Harita, acc. to S. V. p. 72). The sabhā is said to have ten angas

368. targat TH ATHYGTASHKISAT I ANTREMT ryynt TITATET H q. by marre D. 600; F. C. p. 20 ascribes it to entier.

369. #Tatevigeti terasaare I BATETIT

agar rur 11 . in Ta r ot p. 30. FYRET. II, p. 19 and ra. f. p. 5. It is pro bably such a ball decorated with statues and pictures that is referred to in the play Kundamila (p. 10) ‘guardaro: sfoamat ATTE: ’ (in Prakrit), in which some scholars find a reference to the play called Pratima, one of the

Trivandrum plays.

S h e grammigtutuandita vaf fwanitari a (19)

iar para 85. 370. mie s to para … … ferita atragatorefter पश्येत् । अर्थशाब I. 19: आचादहोटभागाधर्षे भागत्रयं भवेत् । स कालो व्यवहारस्य

#TEI Raiff W ur. q. by STI p. 601, FUGA. II, p. 27. ft. p. 72.

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by Br. 371 viz, the king, the chief judge appointed by him, the sabhyas, smrti, gañaka (accountant), lekbaka (the scribe), gold, fire, water and svapuruṣa (a bailiff, otherwise called sādhyapāla). The chief judge declares (the law), the king awards punishment, the sabhyas examine the dispute, smrti ( dharmaśāstra ) lays down the rule of decision, the success (of one party or the other) and the punishment; gold and fire are required for taking oaths, the water is for men when they feel thirsty, the ganaka counts the wealth or subject matter of dispute, the scribe writes down the pleadings, depositions and the decision, the puruṣa summons the sabhyas, the defendant, the witnesses and he guards the complainant and the defendant when they have furnished no surety (for appearance ). It is further said that of these ten angas (limbs) the king is the head, the judge the mouth &c. Acc. to Bṛ. (q. in Par. M. III. p. 30) and Sukra IV.5. 43 the accountant and the scribe were to be proficient in grammar, lexicography and counting, were to be pure (in character) and conversant with several alphabets. Puruṣa was called sādhyapāla, who was to be hereditary, strongly built, a śūdra and obedient to the sabhyas (Vyāsa in Par. M. III. p. 30, V. P. p. 31). The ten angas enumerated above (viz. king &c.) are respectively iden tified with the head, the mouth, the arms, the hands, the thighs (ganaka and lekhaka), the two eyes (gold and water), the heart, feet (Bṛ. in V. P. p. 31, Hārita in Rāj. R. p. 20). In the Hall of Justice the king faces the east, the sabhyas, the accountant and the scribe respectively face the north, the west and the south (Bș, in Par. M. II. p. 35, Vyavahārasāra p. 25). Omitting the king and the chief judge the sabhā is said to have eight angas in certain works (e. g. 8. V. p. 72). The chief justice, the sabhyas and the learned brāhmaṇas were probably elderly people, as great emphasis is laid on this by Nār. (II. 18) and Udyogaparva 35.58 ’that is not a real sabhā where there are no elderly men &c. ’ 372.

371. TUOTETTA Ferrara FATTYTETETT: Firsta चै दश ॥ … बताध्यक्षो नृपः शास्ता सभ्याः कार्यपरीक्षकाः । स्मृतिविनिर्णयं व्रते जयदान दम तथा शपथा) हिरण्यानी अम्बु तृषितजन्तुषु । गणको गणयेवर्थ लिखेन्न्यायं च लेखकः। प्रत्यधिसभ्यामयनं साक्षिणां च स्वपूरुषः । कुर्यादलमको रक्षेदधिपत्यार्थिनी सदा॥हस्पति q. in spark P.600, Fae. II. p. 20, T. AT. III. p. 31; TTT . (pp. 20-21) attributes these to Erta. Vide gf. IV. 3. 38-42 for the verses up to ::

372. TFHT A TT T1 ETA AI IR VATTY FUATRE Ardi quanto Area III. 18 = omaa 35. 58 (reads o carregara). Acc. to a verse quoted from the tours by, the et on सत्या. श्री. सभा is of three kinds: सभास्तु तिम्रो विज्ञेया धर्मस्यैका च कर्मणः।

UT MATTEOT for: antiaer: # The first (HHT) dealt with UUTT and sport, the 2nd ( FT) was a hall where sacrifices were performed and the 3rd (TUR*T) was the royal durbar attended by’ brāhmaṇas, warriors, royal officers and servants. ,

in Worke chief judoes, Vyava

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Judicial procedure in Mṣcchakaṭika

279

In the drama Mrochakatika (Act IX) we have a graphic, though brief, description of judicial procedure in ancient India. That drama is at least as old as the 4th or 5th century A. D. It is very instructive to compare the procedure described in it with that gathered from Nār., Bṛ. and Kāt. who constitute the leading triumvirate on law and procedure in the smstis and who prou bably flourished a little before and a little after the drama. It will be found on comparison that the procedure in the drama is in essentials the same as that of the three smrtis mentioned above, though there is some difference in minor details. The principal points in the drama bearing on judicial administration may be brought together here at one place. The court house was called ‘adhikarana’; the chief judge was called adhikara nika; he was assisted by the śreṣthin (a prominent merchant or banker) and a kāyastha; all three are referred to as ’ adhikaraṇabhojaka’ and are addressed as adhikȚta or niyukta ( appointed by the king); when a despot was on the throne, the judge’s position was precarious and he could be deprived of the post at the king’s sweet will the Sakāra, king’s brother-in-law, threatens the chief justice with summary dismissal ). There was a servant who arranged the seats in the court, inquired whether there was any litigant, summoned Vasantasenā’s mother and Cārudatta ( this man corresponds to the puruṣa or sādhyapāla ); inquiry was made by the judges as to whether any one wanted to file a suit or complaint; the śreṣthin and kāyastha are asked by the presiding judge to write down the important parts of the complainant’s statement; a private person (who was not a relativo) could complain to the court about an alleged murder; the judge allowed an old person like the mother of Vasantasenā and a respectable and well-known citizen like Cārudatta to occupy a seat when replying to questions from the court, but Cārudatta. was deprived of this concession when a prima facie case was made out against him; the court-house (being probably situated near the palace ) had near it mantrins, dūtas, spies, an elephant and a horse (and the chief of the city police is asked to ride the horse and find out whether the corpse of a woman lay in the public garden), and kayasthas ; Cārudatta was called upon to state the truth and the judge tells him that in the court no trick ( chala) will be allowed to pass ; 373 when a strong case was

373. Compare of FAETU a Ferrari I. II. 19; IOT रिवाद द्विगतिः सहवाहतः। नारद I. 29; शिष्टं छल राजा मर्षयेद्धर्भसाधनः । भूतमेष HUT UPT 4: TS # ATE 1. 31.

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made out against Cārudatta by circumstantial evidence he was asked to confess his guilt, otherwise he was told that he would be whipped (i. e. this refers to whipping to extort a confession, vide above note 332 ); the judge was only to pronounce the judgment and recommend the legal punishment, while the king had the last word about the exact punishment; Manu’s work. was an authority; a brāhmana offender was not to be sentenced to death, but was to be banished with all his wealth, though some kings did not act up to this rule; impalement was carried out by cāṇdālas; ordeals of fire, water, poison and balance were known and Sūdraka conveys (viṣasalilatulāgniprārthite me vicare) that Cārudatta had prayed for trial by ordeal, but that the chief justice, because there were witnesses and circumstantial evi. dence, refused that request.

The court 80 far described (i. e. where the king or the chief justice appointed by him presided) was the highest court, But other tribunals were recognized in the smṛtis and digests, Yāj. I. 30 and Nār. (1. 7) state 374 that law-suits may be decided by village councils ( kulāni), corporations (śreni), assemblies (pūga in Yāj., gana in Nār.), the judges appointed by the king and the king himself, each later one being superior to each preceding one. The first three were practically arbitration tribunals like the modern panchayats. The several words here require explanation and they have been differently interpreted by different digests. Medhātithi on Manu VIII. 2 explains these words at great length. Acc. to him ‘kulani’ means’ group of relatives’ and also (acc. to some ) ‘impartial persons’ (madhyasthapuruṣāḥ) and ‘gana’ means ‘builders of houses and mansions or brāhmaṇas dwelling in mathas’. Acc. to the Mit. and V. P. p. 29 ‘kulāni’ means ‘an assembly of the rela tions, agnatic and cognatic, of the litigants’; acc. to the Sm. C. it means ’the agnates of the parties ‘; acc. to Aparārka it means ‘husbandmen’. It appears likely that ‘kulāni’ means officers who presided over a group of eight or ten villages and who were granted the produce of one kula of land as their salary. Vide Manu VII, 119 and Kullūka thereon and Dāmodar pur plate of Gupta year 124 in which the head of the district (viṣayapati) is said to have been assisted by the nagaraśreṣthin, prathama-kulika and prathama-kāyastha (E. I. 15 p. 130) and

374. कुलामि श्रेणयश्चैव गणश्वाधिकृतो वृपः । प्रतिष्ठा व्यवहाराणां एम्पस्तूचरो. arp H FTTT (1.7).

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Several grades of courts

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‘grāmāsta-kul adhikaranam’ in E. I. vol. 17 p. 345 at p. 348 in the reign of Ku māragupta I. From the Sanchi stone Inscription of Chandragupta II ( of the Gupta year 93 i. e. 412–13 A. D.) it appears that panchayats were called ‘pañcamandali’ (Gupta Inscriptions pp. 29, 31). Śreni’ means, acc, to most commenta tors, ’the corporation of persons following the same craft or avocation, though they may belong to different castes’ such as horse-dealers, betel-leaf sellers, weavers and dealers in hide. Aco, to the V. M. p. 280, ‘śreṇi’ is an association of artisans or traders’. “Pūgas’ are assemblies of men of one place (a village or a town) belonging to different castes and following different avocations. Kāt. (225 and 682 ) distinguishes between gana and pūga which he respectively defines as assembly of families’ (kulas) (Sm. C. II. p. 18, Par. M. III. p. 352) and assemblies of traders and the like’(V. R. p. 668). V. P. p. 30 says gana and pūga are synonyms. The king was thus the highest court of appeal and next to him was the court of the judges appointed by him. Bphaspati (S. B. E, vol. 33 p. 281 verse 28) ordains 375 that the kulas, śreñis and gañas that are well-known to the king may decide the disputes of litigants except those that fall under sāhasa and that it was only the king who could carry out the order for fines or corporal punishments, i. e. the arbitration courts could only decide disputes not involving sāhasa and they had no power to execute their decrees about fines and corporal punishments, but that their decisions had to be filed with the king, who, if he did not disapprove of them, put them into execu tion. Pitāmaha 376 appears to mention three classes of State courts, while Yāj. and Nār. refer only to two (viz. that of the chief justice and that of the king himself): ‘a dispute decided in a village may be taken to the city and one examined in the city (court) to the king; a dispute decided by the king whether correctly or incorrectly cannot be reviewed.’ It is distinotly

375, Papout, for at færahy a stoca regar बपि। राज्ञां ये विदिता सम्पककुलभेणिगणादयः । साहसपायपानि कुर्युः कार्याणि से FUT74 11 gæ, in Fort II. 20, M. #1. III. p. 32. #. . p. 68, 69. 1. p. 22. For the first, vide g* IV. 5. 279 and the second is g* IV. 5. 30 wbich reads साहसस्तेयपग्र्यानि.

neo yote

376. Ara qui styroregi er T I 1971 T&: TUTTI i fas Horn in yo. II. p. 19, 97T *T. III. p. 42.

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provided by Br.37 (S. B. E. vol. 33 p. 282 verse 31) that the sabhyas are superior to the kulas and the rest, the chief justice is superior to sabhyas and the king is superior to all. Pitāmaha3774 provides that when a litigant is not satisfied with the decision given by a kula tribunal or the others, he can carry the matter by way of appeal to the king. Besides these courts it appears from

Kautilya that the village headman ( grūmika or grāmakūta ) exercised certain summary powers such as driving out of the village a thief or an adulterer (III. 10) and that he could try some offences (IV. 4, grāmakūtamadhyakṣam vā satri brūyat &c.). Even in the 20th century in the Bombay Presidency under the Village Police Act (Bombay Act VIII of 1867 ) the village head man (called Police Patil) has the authority to try and on con viction to punish with confinement for a period not exceeding twenty-four hours any person charged with the commission of petty assault or abuse within the limits of a village and the person convicted has no right of appeal to any court or magis. trate against such conviction and only the High Court has the power to entertain a petition for revision ( which it hardly ever does). Bhrgus18 quoted in Sm. C. II. p. 18 and other digests says that there are ten tribunals common to all men viz. the village people, the assembly of the citizens of the capital, gana, śrepi, men learned in the four vedas (or vidyās viz. ānyikṣiki and the rest), the vargins, kulas, kulikas, judges (appointed by

377. विचार्य श्रेणिभिः कार्य कुलैर्यन विचारितम् । गणैश्च श्रेण्यषिख्यातं गणाज्ञात नियुक्तकैः । कुलादिभ्योधिकाः सम्यास्तेभ्योध्यक्षोधिकः कृतः । सर्वेषामधिको राजा धर्म यत्मेन निश्चितम् ॥ .in व्य. प्र. p. 30. शुक्र IV. 5. 32 has the last verse, the last pada being धर्माधर्ममियोजकः. Thes4.प्र. p. 30 explains: फालावीमा ज्ञात्याविरूपाणी दाक्षिण्याविनाम्पधादर्शनमपि संभाग्यते … । श्रेणीनामुदासीनतया ततो बलवत्ता । प्रगामी स्पेकस्थानधासमात्रसम्बन्धेपि भिनजातितया भिवृत्तितया च ततोपि मिधोनपेक्षवा. कोदास्याइलपस्वम् । सुपाधिकसानां ततोपि मिःसम्बन्धतया राज्ञा परीक्ष्याधिकताना राजभयावपि पक्षपातदाक्षिण्यासंभव इति पुगेभ्यो पलवसरत्वम् । ___3773. कुलादिभिः कृतं कार्य विचार्य तयधोतरम् । असन्तुष्टस्य कर्तग्यं पावडाशा कवं भोत् ।। पितामह १. by य. नि. p. 13.

378. दश स्थामानि वाताना पच चैषामधीः । निर्णयं येग गच्छन्ति विवाद प्राप्य पादिनः । आरण्यास्त स्वकैः कुर्युः साधिकाःसार्थिकैस्तथा। सैनिका सैनिकैरेष ग्रामेऽप्युभयपा मिनः ॥ उभयानुमतं चैव गृहते स्थानमीप्सितम् । कुलिका सार्थमुख्याश्च पुरमामनिवासिनः। ग्रामपोरगणघेण्यश्चातर्विधन धर्मिणः । कुलानि कुलिकाव नियुक्ता वपतिस्तथा ॥ भस g. by स्मतिच. II. p. 18, परा. मा. III. p. 24, स.वि. p. 67 (summary in prose). प्य. प्र. pp. 8-9. ‘कुलिकाः केचनार्थिगोत्रा बुद्धा स्मृतिच, ‘कुलिका कुलश्रेष्ठाः । प. प्र.p.9; ‘मार्थिनो मामयात्रादौ मिलिलो जनसः ।हल्या ग्रामण्यादयः’ परा.मा. II. p. 25%; ‘सार्थों प्रामदेषयात्रादौ मिलितो जनम तमुख्या सार्थवाहादयः।। प.म. p. 9. It should be noted that here कुलानि and कुलिका: are separate tribunals.

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283

the king) and the king himself. The vargins 379 are the groups of various kinds such as ganas, pūgas, vrātas, śrenis and others. Kulikas may be the elders of the families of the plaintiff and the defendant. In the Dāmodarpur plates (E. I. 15 p. 130 ) we come across one Dhrtimitra who is described as ‘prathamakulika’. The word ‘pañcakula’ was applied to certain high officers in Gujarat and Kathiawad; vide I. A, vol. 11 p. 220 (Abu Ins. of Bhimadeva dated Vikrama year 1265) and Tawney’s translation of the Prabandha-cintamani pp. 18, 84, 129, 149, 190 for ’ pañca kula’. The provisions about the conflict between customs and usages on the one hand and śruti and smrti on the other will be dealt with in detail later on in another section. A few words may be said here about conflicts between smstis. In disputes between residents of the same country, the same city or the same hamlet of cowherds or of the same capital or village, the decision should be according to their own conventional usages, but in disputes between these and others (who are not residents of those respective places) the decision must be in accordance with the sacred texts 330 ( Kāt. 47 q. in S. V. p. 72, Par. M. III. P. 41). Another rule is that when there is an apparent conflict between two smrtis, reasoning is to decide in ordinary life which should be followed or reasoning based on the actions of the aged and the experienced is to decide what text to follow (Yāj. II. 21) and the business of the interpreter consists in holding that one of the smrtis contains a general rule and the other an exception or that the two apply to different sets of circumstances (viṣaya vyavasthā) or that an option may be intended. Voluminous glosses have been written on this one text of Yāj II. 21 right from Viśvarūpa in the 9th century downwards. Another rule is that in the administration of justice dharmaśāstra rules have superior force to those of arthaśāstra. This has been already referred to above (p. 9). Bhrgu further provides that foresters may get their disputes settled by foresters, members of caravaps by other members, soldiers by (a tribunal of) soldiers and those who stay in a village as well as in a forest may get their dis putes settled either by villagers or by foresters by mutual

379. FOTO: TRUST UTTRY BOTHEHOT I FALFUTT or afe fa: # FIGT. . by Feat. II p. 18, F. 19. P 67; puhu

an 999: 1 dat erialaiat rovereat siitā leikatta q. by ty. Fr. p. 13.

380. Quang Hā Nam 1. Hai sinh ngāy : H8 8 1991. q. by TT. #1. III. p. 41, #. ft. p. 72. mar. II. p. 26 appears to a taribe it toपितामह

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agrooment and that the five tribunals for foresters and others are kulikas (high officers or heads of families ), sārthas (members of Caravans), headmen, villagers, citizens. The texts further provide that in certain cases the court was to call in aid outsiders to help in deciding disputes. Vyāsa 331 says: ‘In the case of disputes among traders, artisans, husbandmen and actors it is impossible for others to give a (correct) decision; hence such matters should be got decided by experts in those various matters’. Bļ. states that in disputes among husbandmen, craftsmen (carpenters and the like), artisans (like painters), money-lenders, guilds, dancers, sectarians (like Pāśupatas) and criminal tribes the decision should be made with the help of those who understand the conventions made by them and their usages. In disputes about the boundaries of villages and about fields in a village, four, eight or ten neighbours were to settle the boundaries (vide Manu VIII. 258, Kaut. III, 9, Yāj. II. 150-152 ). Kaut. 1. 19 and Br. 342 (q. in V. P. p. 33) say that disputes between those who have performed austerities or between those who are adepts in witchcraft and Yoga should not be decided by the king (unaided), but with the help of those learned in the three Vedas, as otherwise they may feel offended. These quotations show that certain people could claim to be tried by their peers or at least by a jury. This jury system was resorted to for settling complicated questions of fact. It is a very ancient systein, being mentioned even by Gautama 383 XI. 21-22 ’the king, having received help from the heads of husbandmen, merchants, cow. herds, money-lenders and artisans as regards disputes in their own groups, should finally decide what is just’.

It has already been stated above that the king is to decide according to the smrtis. He has also to take into consideration the duties and usages of the several varṇas and the eighteen low

381. Foretireceyiag giarto trag I 991891 fmofar punetita Firda # # quoted in TTI #1. III. p. 42, 57. 4. p. 23; turṣti: $17 : PIETER HAFT: fogaFATT : : Fūr went or farofanen Terufa, quoted in rq. 1. p. 23. This is g® IV. 5. 18.

382. erat a at trad: FAT I Anreinat er were fi Attorne na stran 1. 19 towards end, Tk, in o. 4. p. 23. 4. 1. p. 281 ascribes it to both qu. and Firmy.

383. Hero-gu17-self-test mot part of firent confermaina. na wrotin. XI. 21-22.

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Enforcement of usages

285

castes 34 (acc. to Manu VIII. 41 and Harita ). The eighteen low castes said to be outside the pale of the four varṇas and āsramas are enumerated by Pitāmaha, viz. washerman, shoe-maker, nata (dancer caste ), bamboo-worker, fisherman, mleccha, bhilla. abhira, mātanga and nine others (the names of which are not given here as the text is corrupt ).

The foregoing gradations of tribunals did not all exist at all times in ancient and medieval India. One thing is, however, quite clear. There was always a court of the Chief Justice appointed by the ruling power and final appeal lay to the ruler himself. But as regards inferior tribunals usage varied. For example, it appears from a decision of 1742 in which a ruling of king Shivaji about a Kulkarni vatan is set out that in Shivaji’s time disputes could be taken before three different but inferior tribunals, viz, the got ( i. e. the assembly of castemen ) which is somewhat like the kula tribunal of the smrtis, or before arbi trators hailing from a place other than where the dispute took place or before the officers, balutedars and chief men of several villages round about. 385

Manu (VIII. 23) prescribes that the king fully dressed and with an undisturbed mind, after taking his seat in the Hall of Justice, should perform obeisance to the gods, the guardians of the ( eight) quarters (Indra and others, as specified in Manu VII. 4) and should then commence the work of looking into the legal business. The transaction of legal business has four stages (from the king’s or judge’s point of view ) viz. first receiving information from a person, then finding out under what title of law ( vyavahārapada) the information falls, then consideration of the pleadings of the parties and the evidence

384. Tato a PARTE gajai wra: 1 FUTETIFTKV 41 T ta! Efte in forere II. p. 29, TTI. #1. III. p. 46, #. . p. 74; 4: पितामहेन दर्शिताः । रजकश्चर्मकारश्च नटो बुरुड एव च । कैवर्तकश्च विज्ञेयो म्लेच्छमिलो तथैव च । … एताः मतयः प्रोक्ता अष्टावश मनीषिभिः । वर्णानामाश्रमाणां च सर्वदा । eft: runt: 1 maro II. p. 29, TU. AT. III. p. 46.

385. Vide ‘Vatappatrem, Nivādapatrem’ edited by Messrs Mavji an Parasnis (1909 A. D.) in Marathi p. 12 at p. 18 RETE DITUTU HAR भागून दोघा वादियांस म्हटले की तुम्ही गोतास राजी असाल तर गोतास पाठवू भगर परस्थळास राजी असाल तर परस्थळास पाठवू अगर हमशाई गाधीचे मोकदम मोलेसर

मोजे मजकूरचे मोकदम पारा लुते पांसी राजी असाल तर त्यांचे गोहीपसन मनमकी बासन ने गोही तुम्हास भानली ते सांगणे.’

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led by them and lastly the decision.386 When a litigant comes before the court at a proper time (i. e, when the court is sitting) and makes his bow, he (the king or judge ) should 37 address him as follows:- What is your business? What is the injury done to you? Don’t be afraid, speak out, man! By whom, when, where and why (was the injury caused ) ? When thus asked whatever he replies should be considered by the judge ) with the sabhyas and brāhmaṇas and if the matter be legally entertainable he ( the judge ) should deliver the seal (sealed order) to the plaintiff or order the bailiff to summon (the defendant)”. These observations are made by Kat. (86-88). Whatever & man, being excited by one of the emotions of love (or anger or greed ), says before the court, should be first written down on a board or the like by the scribe ( Nār. 308 II. 18).

Very elaborate rules are laid down about the summoning of the defendant or accused by Nār. (I 52-54), Br, Kāt. ( 96-100), Sukra (IV, 5-102-106 ) and others. A few of the rules are bet out below. The first person to be summoned is the one against whom a complaint based on suspicion or truth is made by the plaintiff or complainant. But other persons may be called as defendants 19 either when the person proceeded against by the plaintiff puts forward another as liable to plaintiff’s claim or makes another liable along with himself or when another person is accepted by the plaintiff (on behalf of another who is a minor &c.) or (acc. to the Madanaratna ) another person himself comes forward (as defendant). The king should not require the personal appearance of the following persons: the diseased, minors, very old ( beyond 70), one in a calamity, one engaged in some

386. SATH: SUA FITTearag na: Iraith Auferste af 210 falar (I. 36). For explanation, vide faraz. II. p. 29, . fo. p. 75.

387. काले कार्यार्थिनं पृच्छेत्प्रणतं पुरतः स्थितम् । किं कार्य का च से पीहा मा भैषी. हि मानष । केन कस्मिन्कदा कस्मात्पृच्छेदे सभागतम् । एवं पृष्टः स यथ्यात् तत्सम्यै । igret: Arifas 6 rurki ararema: ATEIT rarHafa gto ar PHIESa 11 Fier. g. by Aar. on or. II. 5, aTT. HT. III. 52 and 55, Faria

II, pp. 31, 32. The words to ru refer to a civil dispute and T at diet to a criminal dispute ( # ). ____388. रागादीनां यदेकेन कोपित करणं वदेत् । तदादौ तु लिखेसर्व वादिनः फल

Tra arte ( II. 18).

389. अधिकारोभियुक्तस्य नेतरस्यास्स्यसङ्गतः। इतरोप्यभियुक्तेन प्रतिरोधीकृतो मतः । समर्पितोधिना योग्यः परो धर्माधिकारिणि । प्रतिवादी स विज्ञेयः प्रतिपक्षाश्च यः स्वयम् ॥ wear quoted by our p. 639 (reads aretiragut au:), Frau II. p. 32.

#. P. p. 80.

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Summoning the defendant

287

religious rite, one who would suffer irreparable loss by coming, one in misfortune (such as the death or disappearance of a dear relative ), one engaged in the king’s business or in a (religious ) festival, one intoxicated, a lunatic, one distressed, a Bervant, a woman 390 who is young and whose family is in straitened circumstances or who is of good family or who is recently delivered, a maiden who is of a higher caste than that of the complainant. Nār. (1. 53 ) prescribes that cowherds when it is the season for taking cows for grazing, agriculturists in the sowing season, artisans actually engaged in work and soldiers engaged 390a in war should not be summoned to appear in person, while so engaged. In these cases some one on their behalf should be summoned as a representative. But it is provided that even these persons may be summoned with proper safeguards in important cases or grave charges, such as the killing of human beings, theft, rape, eating forbidden food, counterfeiting coins, high treason &c. But women who by their earnings support their families, unchaste women, prosti tutes, women without family and women excommunicated for grave sins may be summoned to appear personally 39. A. person who is summoned and is able to appear but does not appear in person was to be fined according to the value or importance of the subject matter of dispute e. g. in slight causes fifty (copper) panas, two hundred at least in the cases of middling value and 500 panas at least in heavy causes (vide Kāt. 100-101 quoted by Sm. C. II. p 34, Aparārka p. 607.) After taking the fine and waiting for 30 days or a month and a half the king may give a judgment in favour of the plaintiff, due to defendant’s default. But if the defendant does come after that time, the suit may be restored and proceeded with. 392 But when there is an invasion by an enemy or a famine or an epidemic or disease the king should not impose a fine, but send a second summons. In the case of those who are exempted from personal appearance ( as above) their relatives (son, father &c.) or some other person

390. Compare sec, 132 of the Indian Civil Pro. Code (Act V of 1908) for exemption of certain women from personal appearance,

390 a. Compare the lodian Soldiers ( Litigation) Act (IV of 1925).

391. Vide Mit. on Yāj. II. 5 (for quotations about most of these rules). Aparārka p. 606, Par. M. III. p. 51, Vyavahāra-mayūkha pp. 9-10.

392. & Tuatara framgui f eraturū (

fig au?) सहीत्वा हानिनिमित्तजयपत्रं वयात् । एवं कृते यदि प्रतिवापागच्छति पुनरपि व्यवहारदर्शन

negara i tq. f*. p. 29.

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appointed by them (such as a pupil, servant &c.) or one who can be recognised as their agent may be allowed to appear. 39 But no representative was allowed in serious charges cited above (vide Kāt. 93-95 q. by Aparārka p. 639, Sm. C. II. p. 34). If a father, brother, a friend, or a relative appears before the court for the real litigant, the law-buit may be proceeded with (Pitāmaha). Whoever carries on anything through another by appointing him to that task should be understood to have done it himself and the business transacted by such a representative or agent cannot be annulled. If a person who is not a brother nor father nor son nor appointed to represent another prosecutes a law suit for another, he is liable to be fined 393. As the king was supposed to be the guardian of a minor’s wealth, it appears from this that a king could have appointed a guardian for the suit when a minor was concerned. The above provisions show that maintenance and champerty were not encouraged by ancient Hindu lawyers.

An interesting question arises whether lawyers as an institution existed in ancient India. The answer must be that so far as the smrtis are concerned, there is nothing to show that any class of persons whose profession was the same as that of modern counsel, solicitors or legal practitioners and who were regulated by the State existed. This does not preclude the idea that persons well-versed in the law of the smrtis and the pro cedure of the courts were appointed ( niyıkta) to represent a party and place his case before the court. The procedure prescribed by Nār, Bs. and Kāt. reaches a very high level of technicalities and skilled help must often have been required in litigation. In the com. of Asahāya as edited by Kalyāṇabhatta on Nār. (reādāna 4) there is an instructive story from which it appears that persons who had studied the smrtis helped parties in return for a monetary consideration to raise contentions

392a, sui seratartan : guararen osagai *** #TOT 11 9. by Harques p. 89,874. a. p.201; 3INESUTATTARITTI gani ramyfyrstu :1 KFTIR . by Fay II. p. 33, 4.4. p. 40%; दासाः कर्मकरा: शिण्या नियुक्ता बान्धवास्तथा । धादिनो न च दण्डपाः स्युर्यस्थ HT5FU: # que se ll Teat. quoted by 3937 p. 639. . 393. पिता माता सहयापि बन्धुः सम्बधिनोपि वा । यदि कुर्युपस्थानं बाद तत्र प्रपतयेत् ॥ यः कश्चित्कारयत्किविनियोगायेन केनचित् । तसेनैव कृतं शेयममिवस्य हि तत्

Tu RTA in FrarII. p. 32; these are y IV. 5. 112-113; DI TETTON विषदले तयोर्जयपराजयो । यो न भ्राता न च पिता न पुत्रो न नियोगकृत् । परार्थवादी दा

TIL EITTa rara Il PITE (II. 22-23). This is JF IV. 5. 118,

fenira

ng

marana

17.5.112-113

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Whether lawyers were recognized

289

before the court. But there also the helper comes forward saying that he is a very old friend of the family and has been appointed by the party to represent him. So he corresponded to what is called a recognized agent in the Indian Civil Pro. Code, Order III. r. 2 (Act 1 of 1908). In Sukra IV. 5. 114-117 some important rules are given :34 the person who is appointed to represent a party should get as his wages 1/16, 1/20, 1/40, 1/80 or 1/160 part of the amount in dispute, that the wages become less and less as the claim in dispute becomes higher or if several persons employ one representative; one who knows dharmaśāstra and the procedure of law-guits should be appointed as representative and not any one who is deficient in these; if the representative takes wages without knowing these he should be punished by the king. A representative is to be appointed by the party and not by the king at his will; if the representa tive allows the matter entrusted to him to fail owing to his greed he is liable to be fined 395, In the ‘Questions of Milinda’ (S. B.

394. Faun ( 1) #ena yra tratara ramifrutą i tamet maui T तदर्थी च तदधिकाम् ॥ यथा दष्याधिक कार्य हीना हीना भतिस्तथा । यदि बहुनियोगी स्यादन्यथा तस्य पोषणम् ॥ धर्मज्ञो ग्यवहारज्ञो नियोक्तग्योऽन्यथा न हि । अन्यथा भति गृहन्त दण्डयेश्च नियोगिनम् ॥ कार्यो नित्यो नियोगी न तुपेण स्वमनीषया। लोभेन स्वन्यथा कुर्वन् नियोगी दण्डमर्हति ॥ शुक्र IV. 5. 114-117. The words भूति महम् present a difficulty. Probably there is a compound of a with 4.

395. The story in the com, on Nār, is as follows: In Pātaliputra (modern Patnā) a brāhmana pamed Sridbara acquired with great trouble a fortune and lent to a trader named Devadhara ten thousand drammas at the rate of 2 per cent per month. When one month passed Devadbara paid as interest 200 drammas. When the 2nd montb was running. Devadbara died of high fever, his son died of cholera and only the great-grandson of Devadhara, by name Mahidhara, remained. He was a very young man addicted to gamba ling and other vices. His property was taken under their protection by his maternal uncles. They were advised by a brāhmaṇa who had a smattering of smrti lore and was called Smārtadurdhara ‘Don’t pay even a rupec to the creditor Sridhara. I shall save you even ia Court by citing appropriate texts.’ The uncles replied if you save us, we shall give you a thousand drammas as a reward’, When the 2nd month passed (from the date of borrowing), Sridhara called upon the uncles to pay 200 drammas as interest for the 2nd month. They replied *You cannot claim even the priacipal (from the great-grandson of the original borrower), much less interest’. Smārtadurdhara, the legal adviser of the uncles, said “Nārada declares (rṇādāna 4) ‘grandsons should pay the debts of the grandfatber; that (debt) ceases from the fourth’. On hearing this Sridhara was stunned, but gathering his wits filed a suit in the court and had summonses issued

(Continued on the next page)

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dhammavericity of Richie called, o ti

E. vol. 36 p. 238 ) there is a passage about certain bhikkhus in the city of Righteousness’ (dhammanugara) who are styled * dhammāpanikas’ (dealers in dharma) and are described as follows: ‘(Bhikkhus), who in the spirit and the letter, in its arguments and explanations, its reasons and examples teach and repeat, utter forth and recapitulate the ninefold word of the Buddha; such bhikkhus are called, o king, lawyers in the blessed one’s city of Righteousness’ and on p. 239 there are

dhammasetthino ‘(bankers of dharma), which word reminds us of the śreṣthin in the Mșcchakatika. The dhammāpapikas probably correspond to such lawyers as Smārtadurdhara mentioned above. The rules of Sukra make a near approach to the modern institution of the Bar and the fees prescribed by Sukra are similar to those allowed by the Bombay Regulation II’of 1827 and by Schedule III to the Bombay Pleaders’ Act (Bombay Act XVII of 1920). The first legislative enactment in India to deal with lawyers for representing parties passed by the British Government was the Bengal Regulation VII of 1793 which defin ed the privileges, the fees (five per cent up to 1000 and then on a sliding scale) and responsibilities of vakeels (which word originally means ‘agent’).

The plaintiff may put, under restraint till the approach of the summoner (the bailiff) by the king’s order the defendant, who does not stand up to meet the claim (i. e. is about to abscond or may abscond) that is to be investigated (or when the plaintiff spoke to him about the claim before coming to court) and

(Continued from the last page) to Mabidhara,’ great-grandson of Devadbara, and his uncles. Sureties were taken from both sides. The uncles were asked (by the court) ‘why don’t you pay the interest to Sridhara’? They appointed as their representative Smārtadurdhara, who said that he and his ancestors were friends of the family of Mabidhara and so be addressed the court ‘I rely on Nārada’s words (quoted above), and Mabidhara being the fourth from Devadhara (including the latter) is not liable to pay’. Bhatta Smārtasekbara laughed at this and said ‘Smārtadurdhara, you are not deeply learned in the smrti texts por have you studied glosses thereon. The whole of the debt of 10000 drammas lent by Sridhara is still due from Mabidhara, as he is the great-grandson of the borrower, as three male descendants of the borrower are liable to pay the ancestor’s debt and as Nārada means only this that the son of the great grandson (who is the fourth from the borrower, excluding the latter from ‘computation) is not liable to pay the debt of his great-great-grand-father’ and the learned speaker charged bim with having been promised a gratifica tion, Smārtadurdhara and his proteges lost the case.

III )

Nature of asedha

291

who disregards the words of the claimant. This is called asedha which is explained by the Mit. on Yāj. II. 5 as restraint under the king’s order. It is of four kinds viz, restraint as to (sthāna) place (e. g. you are not to go elsewhere from your house or a temple), as to time (e. g. you must present yourself on the 5th of a certain month), restraint from going on (pram vāsa) a journey (till the suit is decided) and restraint from doing certain actions (e. g. you are not to sell certain property or to plough a certain field till the disposal of the suit ) 396 The rules about āgedha are laid down by Nār. (I. 47-54), Br. (g. by V. P. p. 42, Sm. C. II. pp. 30-31), Kāt. 103-110 (all quoted by V. P. pp. 41-42, Sm. C. II. pp. 30-31). Nār. (I. 54) states that those persons whose personal appearance is dispensed with as stated above are not to be subjected to āsedha. Nārada provides that he who disregards the prohibitory order (āsedha ) of the court should be punished and that he who obtains a restraint order against a person that should not have been thus proceeded against should also be punished. Acc. to Kāt. that man who restrains the defendant 80 as to prevent him from exercising his limbs or from talking or breathing freely should be punished and not the defendant if he breaks such restraint. A defendant would not be liable to be fined, if he disregards a restraint order which ties him down to a river ford, or to a forest, to a bad place ( infested by thieves and tigers) or at the time of an invasion (Nār. 1. 49). There is a provision which looks like one for the appointment of a Receiver in modern times. Kāt. (120) says’ A king should not allow a litigant to proceed if the litigant retains the property or money which he has (been shown to have) seized; it should be delivered over to the opposing litigant (if he be trustworthy) or it may be kept with a third person (as receiver for the successful party )39. When the defendant comes on being summoned, he and the plaintiff are both to be placed before the judges (Pitāmaha q. in Sm. C. II. p. 34). Then a surety is to be taken from both who would be capable of carrying

396. It should be noted that these provisions about āsedha are analo gous to those about attachment or arrest before judgment (section 94 and Order 38 of the Indian Civil Pro. Code of 1908) and temporary injunction (Order 39 of the same).

397. ETTE TURUT HE Torino ar MARCH (PIFTUTTO afa TEET TE T ur.q. in . II. 5.35, forvp.94, which explains *wfūnf HUVATTIR Tania ar putea ATTU IT # A fturat मनग्या । पक्षीत । गमते इति ग्रहणं विधावपदं सग्रहीतं यत्रस गुदीतग्रहणः । तस्य parƯ: a ( ?) FACE PURT AYFURT FOR UT PULCIAITU’:‘292

[ Vol.

out the decree made by the court i. e, who would be able to pay the amount of fine to the king if the defendant denied the plaintiff’s claim or who would be able to pay double the amount of the claim if the plaintiff’s claim be found to be false (Yaj, II. 10–11). If any one of the parties cannot offer a surety, then he has to be kept in the custody of the court’s bailiff (sādhyapala) and has to pay the daily wages of the bailiff at the end of every 398 day ( Kāt. 117 q. by Mit. on Yāj. II. 10). The following persone could not be accepted as sureties ( Kāt. 114-116 d. by Mit. on Yāj. II. 57); ’ the master (in the case of a party being a servant), an enemy, one authorised by the master, one arrested, one fined, one accused of grave sins or offences, one who is a co-sharer in family property, a friend, one who is a perpetual student, one who is appointed to do the king’s business, ascetios, one who would not be able to pay the amount decreed and the fine to the king, one whose father is living, one who incites the party for whom surety is demanded, one whose antecedents are unknown.’ When a person ( of any caste ) is kept guarded for want of a surety he is not to be prevented from doing necessary and obligatory acts (bath, sandhyā worship &c.) and if he runs away from the guard he should be fined eight paṇas (Kat. 119 q. in Par. M. III. 58).

When the defendant comes before the court, the information at first given by the plaintiff is to be written down accurately in his presence together with the year, month, fortnight, day, names (of parties ), caste &c. ( Yaj. II. 6). When the aggrioved party first comes to the court, all that is taken down is the matter in dispute (i. e. the draft of the plaint); when the defendant comes, the plaint is written down with all details (including the grievance as stated in the beginning ). 399 The plaint is called by various names in Sanskrit viz. pakṣa, bhāṣā, pratijna ( Mit. on Yāj. II. 6). Sometimes the word ‘pūrvapakṣa’ is used for pakṣa (as in Kāt. 131, Nār. II. 1). Vadin and prativādin generally mean the plaintiff and the defendant, though Vādin sometimes means ‘a litigant’ (either the plaintiff or defendant). * Arthin’ (one who seeks the assistance of the court) and abhiyoktr (attacker) are synonyms of vādin, and pratyarthin and abhiyukta (attacked) are synonyms of prativādin. Kat.

398. po rurar garin & tertarra: 1 # tarat fancia GUT TY

EN STEG1. quoted by far, on T. II. 10 and V. P. p. 44. - 399. भावेदनसमये कार्यमा लिखितं प्रत्यर्थिनोऽप्रतः समामासादिविशिर्ट लिसयते

a forma: I pray of YTTET TUTTE I FATT. on gr. II. 6,

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Concerning plaints

293

( 130-131 ) says that the judge 400 should have the plaint written down on a board (or on the ground) with a piece of chalk as narrated naturally by the claimant and then on a leaf ( palm leaf or bark or paper ) when it is corrected ( after the defendant appears) and that the plaintiff may delete some matters from the original ( draft of) plaint and may fill in gaps and that such amendments may be made in the draft till the plaint is finally settled. 401 It appears from the Vyavahāratattva (p. 205) that the pleadings (the plaint and the reply) could be written down in Sanskrit or in the vernacular of the parties if they were ignorant. The Mșcchakatika (Act IX) shows how the presiding judge asks the sresthin and kayastha to write down the words ’not by me’ as the complaint of the Sakāra when the latter averred that Vasantasenā was killed by Cārudatta and not by himself. The plaint could be amended till the filing of the reply 402 (Nār. II. 7). Elaborate rules are laid down about the contents of the plaint by many writers from Kautilya (III. 1) downwards. Kaut. 403 states that in the plaint should be entered the year, season, month, fortnight, day, the documents to be relied upon), the court (in which the plaint is lodged), the (amount of) debt (or other money due ) and the country, village, caste, family, names and occupations of the plaintiff and defendant together with the relationship in which they stood to each other. Kāt. (127-128 q. by Mit. on Yāj. II. 6 and Aparārka p. 608) requires that in suits about immoveable property, ten details should be recorded in the plaint viz. the country, the place ( town or village in which the property is situated), situation ( boundaries or the figure such as a square &c.), the caste ( of both parties), names,

400. It studerartix gragraai Traa OTT 09: ara ष्टित: ॥ पूर्वपक्ष स्वभावोक्तं प्राविधाकोऽभिलेखयेत् । पाण्डुलेखेन फलके ततः पत्रे विशोधितम्। Freur. q. the first by por sua et on gr. II. 6, the 2nd. by Haro on T. II. 6 and both by spare p. 611, 92T. AT. III. PP. 65-67.

401. studēgārra a Tarraga I Segmurator fage situa a # ITT g. by FATTO ON T. II. 6; gay #f otraTO TUTTI medias पा। मुर्खाणामपि वाविपतिवादितादर्शनात् । अत एवाध्यापमपि तथोक्तं विष्णुधर्मोत्तरे । संस्कृतैः प्राकृतेर्वाक्यैः शिष्यमनुरूपतः । देशभाषायुपायैश्व बोधयेत्स गुरुः स्मृतः ॥ toagrata p. 205.

402. Under the Civil Pro. Code, Order VI. r. 17 (Act V of 1908 ) the plaint may be allowed to be amended at any stage of the suit. The ancient Indian rule was somewhat stricter.

403. HTO HTET FUTUTATŪTorgo mut: AUF fuglar riftir a altor for arra utara #vinglarani NÚMI III. 1.

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the dwelling place (of the parties ), the measure (so many nivartanus &c.), the name of the field, ( names of) the father, grandfather and great-grand-father, mention of the former kings. Kāt. 124-126, Br. (q. in Sm. C. p. 36 and V. M. P. 294 ) give further details, which are passed over for want of space. All the details enumerated above need not occur in every plaint, but the necessary ones must be stated according to the facts of each case 404,

These rules about the contents of plaints are very similar to those in the Indian Civil Pro. Code, Order VII rules 1-5.

In modern India no suit or appeal can be filed unless the plaintiff or appellant pays substantial court-fees (Rs. 71 per cent upto Rs. 1000 and 5 per cent for higher claims up to 5000 and so on at reduced rates as the claim rises). It is interesting to see how the litigants in ancient India fared in this respect. It appears that in disputes of a criminal nature no court fees had to be paid in ancient India. The person found guilty had to pay to the king the fine declared in the Smṛtis for offences or awarded by the Court. As regards civil disputes also nothing had to be paid at the inception of the suit. Certain rules are prescribed by Kaut. (III. 1), Yāj., Viṣṇudharmasutra, Nār. and others about payments to the king after the suit is decided, which payments may be regarded as in the nature of court fees. Yāj. II. 42 and Viṣṇudharma sūtra VI. 20-21 state that in the case of suits for the recovery of debts the debtor who admitted that he was a debtor (but did not pay the creditor) should be made to pay to the king 10 per cent on the amount decreed and the successful creditor should pay five per cent out of the amount decreed ( as bhfti, compensa tion or court fee ) 405. When the debtor denies the fact of debt altogether and the creditor succeeds in establishing it, the debtor had to pay the amount decreed to the creditor and an equal amount to the king as fine; but if the plaintiff turns out to be a false claimant (i. e, the relationship and the amount of the debt are not proved) he had to pay to the king as fine twice as much as the amount claimed by him (Yāj. 11. 11). Nar. also (IV. 132 ) sayg $06 that a debtor, who is able to repay a debt but does not

404. et att anat FIVF14 rotaruratgania T *** prarā

Ratio TUTTI STOTI. P. 608. 405. IFTAR TREA TTIVAISUROTT TTT VAATTETAS GUg uia FIATTERT VANHANTI fasgun VI. 20-21.

406. TO Fat to Shri tua Itigi araraget: T1 TC1rar

E N ATTĘ IV. 132. The 14. nqm p. 182 reads yogarisi # fāt (i. e. 20 per cent).

T

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Court fees

293

do go through wickedness or malice, should be made to pay the debt after recovering five per cent from the debtor. The Sm, C. II. p. 121 says that this applies to a case where the debtor admits his liability to the plaintiff. Manu VIII. 139 gives milder rules: ‘if a debtor admits before the Court that he is a debtor, then he has to pay a fine equal to five per cent on the amount decreed, but if he denied the fact of debt altogether, then he has to pay as fine ten per cent’. Manu VIII. 59 which prescribes a fine twice of that amount which the debtor falsely denies or which the creditor falsely claims contains a somewhat different rule (which Medhātithi says applies where parties are guilty of downright fraud, while VIII. 139 applies where there is negligence or loss of memory &c.). In suits other than for debts such fines are also prescribed e. g. in Yāj. II. 26 for one who misappropriates a pledge, II. 33, II. 188 (for breach of the rules of guilds and other groups), Yāj. II. 171 (where a person claiming to be the owner of lost goods and failing to prove his ownership of them was fined pañcu-bandha i. e, a fifth part of the price of the goods). Kaut prescribes 407 that when a party is guilty of contradictory pleadings, or does not cite witnesses though saying he has witnesses and is defeated for these and similar reasons he has to pay a fine of 20 per cent of the claim and 10 per cent only if he relied on his own deposition (and called no witnesses) and further the defeated party has to pay the costs viz. the wages of the bailiff and of the subsistence allowance of witnesses. Therefore it may be said that in ancient times Indian litigants had an easy time, while in modern times litigation is often ruinous, what with the heavy court fees to be paid in several courts, the fees of legal practi tioners and the expenses of witnesses and the delay of years 408. The remark of Dr. Hart (in ‘Way to justice’ p. 17) is as appli. cable to modern India as to England ’the plain truth is that the justice of the courts is unattainable by some citizens through want of the necessary financial resources; while in the case

407. Ee: 40: materiaqori : I for I ar *Austaa: 144

BUST III. 1. 408. In modern times a plaint or memorandum of appeal is to be rejec ted if not properly stamped. Vide Order VII. r. 11 of the Indian Civil Pro. Code. The Peshva’s Government appears to have taken one-fourth or one fifth from the party whose claim for partition or for recovery of debt suc ceeded. Vide ‘Peshwa’s Diaries’ ed. by Rao Babadur Wad, vol. 2 pp. 132, 146, 163.

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of many others it is not worth having at the cost which it involves

In one of his most famous soliloquies Shakespeare (in Hamlet III. 1 ‘Oppressor’s wrong, the proud mans’s contumely, the pangs of despised love, the law’s delays’) enumerates law’s delays among the principal evils of human life. In modern India as in England 409 before 1873 delay in the decision of causes is a crying evil. In the rough and ready methods of administering justice in ancient India care seems to have been bestowed on disposing of cases as quickly as possible. The story of king Nṛga who caused delay has already been referred to (p. 243). Kaut. (III. 1) states that if the plaintiff, after the defendant files his answer, does not on the same day begin to support his case (by evidence) he would be declared to be defeated, since the plaintiff comes to court after determining the strength of his case, but the defendant does not do so (he is dragged to the court); that the defendant may be allowed an adjournment of three or seven days for his defence ; if he is not ready with his defence within that time he may be punished with a fine ranging from 3 to 12 panas ; if he does not answer even after three fortnights he shall be punished with fine for parokta (viz, pancabandha or databandha as stated above in note 407) and the plaintiff’s claim would be recovered from the property of the defendant. A similar rule is laid down in Manu VIII. 58. Yaj. II. 12 prescribes that disputes relating to sāhasa (killing by poison or weapon), theft, abuse, assault, cows, charges of grave sins and women ( about the chastity of all women and about ownership in the case of female slaves), the defendant has to make his defence at once, and that in other cases time may be granted at the discretion of the court. Nār. I. 45 is to the same effect. Nār. I. 44 holds that adjournments may be granted in suits about debts and the like for finding out the truth as such disputes are complicated and as memory is weak. Pitamaha (q. in Sm. C. II. p. 42) says that adjournments may be granted in disputes about deposits, sealed deposits, gifts, partnerships, transgression of conventions and partition of heritage. Gautama XIII. 28 speaks in general terms of an adjournment for one year, when the defendant does not remember the transaction, but prescribes immediate trial in

409. For the enormous delay in the disposal of even simple proceedings or Bills in Chancery in England, vide Holdsworth’s . History of English Law’ (1926) Vol. IX. pp. 374-375 and 433-435.

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Adjournments

297

disputes about kine, women and children or when the matter is urgent i. e. where loss or abandonment of the thing will be the result of delay ( Gaut. XII. 29-30). Brhaspati allows time even to the plaintiff if he is not able to put forward his case owing to his immaturity or lack of boldness. 410 Kāt. (145-158 quoted by Aparārka p.619, Sm. C. II, p. 42, Par. M. III. pp. 69-72) contains elaborate rules about adjournments. He says that according to the importance or otherwise of the dispute, one, three, five, or seven days may be allowed to the defendant to make his defence in disputes about debts, according as the debt was contracted three months ago or 6, 12, 20 or 30 years ago; that even more than a year may be allowed if the defendant is an idiot or lunatic or is suffering from disease or if the subject of dispute or the witnesses are in a foreign country; that more adjournments than one may be granted in such cases; that according to Brhaspati in disputes about immoveable property also no adjournments should be granted; that if the act of God (daiva) or the king prevents the defendant from making his defence he should not be declared defeated, but time should be granted to him to prove this. It is clear that with the advance of time adjournments became longer and more frequent in Kat. compared with the rigid rules of Kaut.. Kat. and Sukra (IV.5. 167, 209 ) contain the last word on this point. According to them delay in deciding causes is tantamount 411 to denial of justice ( dharmavyāpatti, lit. death of Justice ).

The sequence of stages in a law-suit is as follows: first the plaintiff makes his averments, then the defendant makes his reply; when both have finished, the members of the court speak (or deliberate among themselves) and after them (speaks) the judge ( Kāt. 121 g. by Apararka p. 611, Par. M. III. p. 58). The four stages (pādas ) of a law-suit, acc. to Yāj. II. 6-8, and

410. Ortalarunag ore I FRUITHI re: re: - ma: U FOUTAT 9. in prap. II. p. 42; OISHTE HATT T ARTEA 1 19 Fires: yamnas TarasTW: 6 Treef@ q. in Fig. II. p. 40, Tr

p. 611.

411, tortor TTT FT I Alre are THIE NÁVargita लक्षणः ॥ दद्यादेशावरूपं तु कालं साधनदर्शने । उपाधि वा समीक्ष्यैष देवराजकवं सदा ॥

• IV. 5. 167 and 209. The first is almost the same as Kāt. 339 (9. in FATII. p. 92, 17. pr. p. 306, . f. p. 148, which read

A T and Wire)

38

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Bp. are named 412 bhūṣūpāda (the plaint ), uttarapāda ( the reply ), kriyūpāda (the adducing of evidence), sādhyasiddhi 413 or nirṇaya (the decision); while Kāt. 31 states them as pūrvapakṣa, uttara, pratyākalita and kriyā. Pratyākalita means ‘discussion or consideration among the sabhyas about the burden of proof’(vide p. 260 n. 337). If several persons come simultaneously with compla. ints or plaints, then the order of taking up the cases is regulated by the unirṇui of the plaintiffs i. e. the suit of a brāhmana is first taken up (Manu VIII. 24). Kaut. I. 19 states 414 that the causes of temples (or idols ), ascetics, heretics, brāhmaṇas learned in the vedas, about cattle and sacred places, of minors, of the aged, of those afflicted with disease or misfortunes, of the helpless and of women are to be looked into in the order enumerated or according to the importance of the causes or their urgency. Kāt. ( 12% q. in Sm. C. II. p. 35, Par, M. III. p. 59 ) says that preference should be given to that litigant whose injury is greater or whose cause is more important than those of the rest. Kaut. IIL 20 went 415 so far as to say that judges should look into the causes of idols (or temples), brāhmaṇas, persons performing austerities, women, minors, the old, the diseased, the helpless, even if they did not come forward to complain nor should judges put forward the excuses of time (i. e. the long delay in taking cognisance of their causes), place, or (long) enjoyment (of their opponents ).

· Lengthy quotations and illustrations are cited in the com mentaries and digests about the requirements of a good plaint. They are all passed over. They well illustrate the penchant of ancient Indian writers for divisions, sub-divisions and subtle distinctions.

Kāt. (136 quoted by Aparārka p. 609) specifies several roasons which make a plaint unacceptable viz. one that lacks

412. q#: Fa: gratiamur HTCFAUT TEST anyagot fogo KETUT TP q. by 397 p. 616; &991 YTToana

Tias fraro ETHEREAU $771. q. by a p. 616. V. P. p. 44 quotes a verse of Bs., where 4 1 is the 4th grą.

413. अत्र च सिद्धिशब्देन सम्यामामप्रित्यर्थिविषयजयपराजयावधारणोपायभूत प्रमाणमस्येदं शास: प्रामोतीति विचारकाणा परामर्श: प्रत्याकलितादिशब्दवाच्य उच्यते

AF SETTEL 1 319 p. 616.

414, FATERClearanggapant manteqrquet tortaita Palio ordine i forritararatata api I. 19.

415. gargarakimitarWIRTUTARHACHI AFUT: Freirer I TEIT

H eig: 1 pe III, 20.

III)

Defective plaints

299

T

the mention of the time and place ( of the cause of action), that omits the statement of the material ( dravya, which is the subject of dispute ) or the amount thereof and that is wanting in (stat ing ) the extent of the relief claimed, that is opposed ( to the interests or usages ) of the country, that is prohibited by the king’s order, that mixes up several vyavahārapadas. 416 Certain plaints are declared to be vitiated (pakṣūbhāsa ) 417 and not entertainable viz. a plaint that contains an unknown (or imaginary ) grievance, that discloses no injury, that contains letters or words making no coherent sense, that states no cause of action, that is incapable of proof or is self-contradictory ( Kāt. 140 g. by Mit. on Yāj. II. 6, Par. M. III. 61 ). Nār. II. 8 also points out the faults ( dosas ) of a plaint and explains them (II. 9-14). Bșhaspati states that there is to be no law-suit between teacher and pupil, father and son, husband and wife, and master and servant. This does not mean that law-suits between these pairs are altogether prohibited but that suits between them are undesirable, that the king or judges should persuade them to desist from proceeding in Court, that if they persist the court has to decide the suits according to the sāstra. 418 Manu (VIII. 299-300 ) prescribing the same punish ment as for a thief in cases where a wife, son, slave, servant or brother is beaten for correction more severely than is allowed in the sāstras by the husband, father, master, or elder brother respectively conveys by implication that a legal proceeding by these is possible. The smṛtis did not encourage disputes based on

416. If a plaintiff states the defendant stole my gold, I deposited a thousand dranimas with him which he does not return, he sold a cow to me without being its owner’, there is a joinder of three vyavahārapadas viz, steya, niksepa, asvāmivikraya. This is not a bad or altogether unacceptable plaint. All that is meant is that the trial of all these cannot be carried on simultaneously, but one after another.

417. 3 farratū falu

T a pi MATET I ET AT THTË विवर्जयेत् ॥ कात्यायन quoted by मिता. on या. II. 6 (without name), परा. मा. III. 61. The fyraq. II. 37 ascribes the same verse to zerua (last pada being TRTIST fastua). Vide my notes to Kāt, 140 where it is shown how there is a good deal of divergence about the interpretation of this verse..

418. Grasot Tarigant ara faya gant Fra# 99% विद्यते । नारद acc. to विश्वरूप on याज्ञ. II, 5, and gr. acc. to मदनरस्न and ग्य. प्र. p. 34. The latter remarks ‘hna 9 guratat pretiraf: FIE TETTO लोकदये न श्रेय इह मिन्दायहरवावमुत्र नरकजमकरवादित्येतत्परमेष । राजादिभिस्तु नायमुचितो व्यवहारो लोकहरहानिकरत्वादिति निवार्यमाणा अपि शिष्यावयो न परितण्यन्ति

rettet

u nojaan , vide also Ant. on a II. 32 for similar words,

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flimsy or trumpery grounds. Bphaspati 419 says that a plaint that is nirarthaka ( i. e. the injury in which is very small or the monetary value involved is negligible) should not be entertained by the king. This is on the principle of de minimis non curat lex (the law does not take account of trifles ) also embodied in sec. 95 of the Indian Penal Code.

When the plaint has been finally settled, the defendant should be called on to reply in writing to the plaint in the presence of the plaintiff ( Yāj. II. 7, Nār. II. 2). This is called uttara ( reply ) or pratipakṣa (Nar. II. 2). When time may be given to the defendant for putting in his answer has already been stated above.

The answer of the defendant must possess the following characteristics viz. it must completely meet all the points of the plaint, it must not deviate from the truth, must not employ vague words, must not be self-contradictory, it should not be such as to require further explanation (because of containing words in a foreign tongue or unknown or rarely used words or elliptical or badly arranged sentences ). 420 A reply is of four kinds, (1) mithya ( of denial ), sampratipatti or satya ( confession or admission), kārana or pratyavaskandana (of special plea or demurrer ), prānnyāya or pūrvanyāya ( of former judgment or res judicata ). A reply of denial may take four forms (Nār. II, 5) viz (1) this ( what is affirmed in the plaint) is false, I do not know anything about it, I was not present ( when the transact ion alleged in the plaint is said to have taken place ), I was then not born. 421 The first is a direct denial, the others are implied or indirect. Very strict rules of pleading were evolved by the

419. FORTIYTTU: fumutut faire una pa: igaraja q. in f. fo. p. 87 and Ferrano II. p. 37, which explains t atuatorCETO I BERTH Hifaa Tarin क्षितः मामकी लाक्षानेनापहता इति वा।

420. 79 Tr U TTA 30 regia di Araç alagt ray: n quoted by far. Op 7T. II. 7, 3 p. 612 (ascribes to HITE), Faro II. p. 42 ( ascribes to qugfa ), g IV. 5. 139.

421. FACUT #forerat 9849**** UTI91arfurie 1970 19 Menu FIT II: 2; Frarga has Hi TACTIT Hathai aur rafors oriungi fulani q. in. Auf, on T. II. 7. The same is yo IV. 5. 144. एतदेवाधर्यमिति फैश्चिदुच्यते। पद्धकात्यायन: यपेता तु क्रिया या अभियुक्तेन

TUTTI o agrairgrāa apyur # 679. F. p. 51 and tu. 1. p. 307 (reads वायिका हु क्रिया). आधर्ष is probably derived from अधर (meaning

lower.’, ‘weak of ‘inferior’). The 17. 1. reads 3.Turā, wbich appears to be a wroag reading.

5. 144. man met snarare is probably deri , which

III ]

Strict rules of pleading

301

time of Kat., who provides ( 144 ) that if a statement asserted by the plaintiff in the hearing of the defendant is not traversed by the latter or if the latter remains silent when he should have given a reply, it should be held by the court that it ) is admitt ed (by the defendant ). 422 When the defendant declares the truth of the claim made in the plaint that is a reply of admission. Where the defendant accepting as correct the matters (or facts ) set out by the plaintiff raises a plea, that is a reply of special plea. 423 The same is designed by some as adhārya or adharya (rendering futile) of the plaint. For ex ample, where plaintiff avers that defendant took one hundred rupees and defendant accepts that fact but adds either that he later on returned them or that they were really donated to him, that is a reply of special plea. Where a person though defeated in a (former ) proceeding again causes a plaint to be written and is addressed ( angwered ) with the words ’ you were formerly defeated’, that is a reply of former judgment. That there was a former judgment between the same parties may be proved by citing the judges or arbitrators or by citing other witnesses or by producing the writing itself i. e. the copy of the judgment ( Kāt. 172 ). 424 In a reply of admission there are only two stages of vyavahāra viz, the plaint and the reply; there is no need of proof ( so there is no kriyāpāda ) and the plaintiff succeeds as a matter of course ( and so there is no necessity of a regular judgment, nirṇaya). Kāt. (173-190 ) states at great length the faults of a reply and also what are not proper replies. The Mit. (on Yāj. II. 7), Aparārka pp. 613-614, Sm. C. II. pp. 43-46 and

422. HEPATOTIVAT UT = Fearrata: aramies TuT TOT rua: Huigatiaa: I TETT. q. by 60*1996. Compare Order VIII rule 5 of the Civil Pro. Code.

423. अधिना लेखितो योर्थः प्रत्यर्थी यदि तं तथा। अपच कारणं यात्मस्यवस्कन्दन FT T IV. 5. 148, ara q. by far. on GI. II. 7; vide FT4177 170, a. by *. #T. p. 307 (reads Tiruaret: Frie: ), .9. p. 59 (which reads

आधय भूगरमधील as the last pada).

424. fegra FTTET Tima a ati ada hari F 12479 farvet478 n regras q. by FfyII. p. 43 which explains ’ n e METTETTHOUTIETO TUTE’, F. 1. p. 61. The ry, fot. (p. 53) has the follow ing note on this ‘ऐन्द्रस्थाने जितस्य प्राण्यापविधिसिद्धी जयपत्रेणाई भाषयामीत्येकः कुलव्यवहारे च जयपत्राभावात् कुल्याः कुलविवादषु विज्ञेयास्तेपि साक्षिण: इति षचनात् तैरव व्यवहारदशिभिर्भावयामीति द्वितीयः । राज्ञा धर्मासमरपन पच्युत तस्सदर्शिमा। नान्यः साक्षी भवेत्ता मुक्या राजानमीश्वरम् इति पचनात् साक्ष्यभावाम राज्ञा भाषयामीति wate: #‘302

[ Vol.

other digests quote long passages from Kāt., Bș., Harita, Vyāsa and others on faults of uttara and illustrate them at length. These have to be omitted for want of space. One of the faults is ‘sankara’(mixture or confusion or misjoinder of pleas in defonce). For example, if the plaint alleges’ the defendant took gold, a hundred rupees, certain valuable clothes and a quantity of corn and has not returned any of them,’ and the defendant’s reply is ‘I took the gold, I never took any rupees, the plaintiff donated the clothes to me, as to the corn plaintiff had already filed a suit against me and failed’. Here the reply contains all four varieties, viz. the first is a reply of admission, the 2nd is one of denial, the third is a special plea and the 4th is a plea of former judgment. This is a sankara. But it is not meant that this reply would not be allowed. All that is meant is that, as the burden of proof varies, the adducing of evidence will not be allowed simultaneously, but one after another. Vide Mit. on Yāj. II. 7, Par. M. III. pp. 77–80. These questions are concerned with cases in which several issues arise, the burden of proving some of which lies on the plaintiff and the burden of proving others lies on the defendant. If a defendant does not come forward to give a reply, the king or judge should make him give one by sāma ( conciliatory words ), bheda (threats ) and other ways and if he does not give a reply for seven days after that, he may be declared to have been defeated and a decree may be passed against 425 him. Kaut. (III. 1), Yāj. II. 9, Nār. I. 55 Kāt. (163) state that a defendant cannot 426 raise a counter-claim (pratyabhiyoga ) as long as he has not met the attack of the plaintiff, nor should another plaintiff attack a person who is a defendant in a suit already filed, except in the case of abuse and assault, sāhasa ( death or grievous hurt by a weapon &c.), theft or in a very urgent matter, or in disputes among members of caravans or guilds or in charges of adultery, Yāj. II. 29, Nār. IV. 93, Sukra IV. 5. 120 say that when a litigant dies while a suit is pending, his son (or other representative ) who takes his estate should carry on the litigation or be liable for the claim and the son cannot add his own enjoyment (to make up

425. उपायेश्वोचमानसान वयानुसरं तु यः । अतिक्रान्ते सतरात्रे जितोऽसौ दात are the q. in fum . II. p. 46, 971. AT. III. p. 81, 7. 37. p. 56 (reads उभयै श्रोष. and दण्डमईति). This is हारीत acc. to स.वि. p. 99.

426. Byty prepagofta *4 MEHICHOHAVIC74: 17 un ghisanten i seme III. 1; hgmisharoitlarirger fra 1974% EVEYTTUR RUSTETTU 1779. . by ve. #T. p. 299; should we not read माभियुक्तो or नाभियुखीत।

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Grounds of defeat

303

three generations &o, as required for possession ripening into ownership ). 427

There were many grounds on account of which a litigant became what is called hina (a losing party) and some times either had his plaint dismissed or his defence struck out and a decree passed against him or he was simply fined. For example, Nār. II. 33 speaks of five kinds 428 of hina viz. one who changes his state ments (or pleading), who does not prosecute his pleading by adducing evidence (i. e. avoids investigation), who does not appear when summoned, who gives no reply, who disappears or runs away when summoned. Nār. I. 56-61, II. 24 explain some of these and other hina parties. Kāt. 202 (q. by Sm. O. II. p. 47) prescribes that the above five should respectively be fined 5, 10 12, 16 and 20 panas. Nār. 11. 25 states that in all civil disputes such as those about women, land or debts the litigant does not lose his cause even if he commits a mistake in his statements, but he is liable to fine. This conveys that in disputes arising out of wrath (manyuksta i.e. in criminal matters ) a person loses his cause if he is guilty of the above acts and he is prohibited from pursuing the matter again. Kaut. III. 1, Manu VIII. 53-57 contain in almost the same words, certain similar rules, Kaut. calling the several actions causes of parokia ( defeat). Vide Yāj. II. 16, Sukra IV. 5. 136, Kāt. 191-210 for further details on dismissal for default and cognate matters. In these cases of hinavādins, though a fine was imposed, a retrial could be ordered. When defendant filed his reply and parties joined issue in court, Br. and Kāt. say that they should not then be allowed to compromise the dispute privately without the permission of the

427, tinggia: fara a fait to T. II, 29; quanTrea la ga urce sreytt faen Tut a facerda u y* IV. 5. 120.

428. #TATT PATTEOTT Preparat #TUTI I TE699ricia: cara: Fa: 11 FIE II. 33

____429. पूर्वोत्तरे संनिविष्ट विचारे संप्रवर्तिते । प्रशमं पे मियो पान्ति दाप्यास्त द्विगुण दमम् ॥ … साक्षिसम्पपिकल्पस्तु भवेतनोभयोरपि । दोलापमामो यो सन्धि कुर्यातां तो parti I SAWANT Tipaswati PWT yao kud

T.q. by m e. II. p. 49, p. 104, TIT. AT. III. pp. 84-85, 64. 4. p.77; भाषेध प्रगृहीताथै प्रशमं यान्ति ये निधः। सद्विगुणदास्युर्विप्रलम्भान्नुपस्य तु॥

TEAT. 210, 4. by fra II. p. 49, T1. T. III. p. 84, 4. #. p. 77. the . 97. says (p. 77) Punt VEFT TO TRATTORIT * a Prato

II warara : Vide S. B. E, vol. 33 pp. 295-296 verses 10-12 for Bp. (Dr. Jolly’s tr. of verse 10 is not correct). Compare Order 23 r. 3. of the Indian Civil Pro, Code and sec, 345 of the Criminal Pro. Code for compoud. diog offences),

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court; if they did so they were both to pay double of the fine imposed on a defeated party, as they deprived the king of his dues ( court fees). But a compromise with the court’s permis sion was allowed when the parties were in doubt as to what the witnesses might say or the sabhyas might decide (in such cases it would be wisdom for the parties to compromise) and particularly when the evidence on both sides was evenly balanced or where there was a conflict between the different smrtis and usages.

When the reply had been given the subhyas had to consider the question about the burden of proof. Br. 430 says the sabhyas after considering the nature of the reply should call upon ono of the parties that are in court to establish his case ’ (Sm. C. II. p. 50). What a party sets out to establish is called sādhya and the means whereby the claim of the litigant) in its entirety is established is called sādhana ( Kāt. 213 in V. P. p. 79). Yāj. II. 7 and Nār. II. 27 say that the party (on whom the burden of proof lies ) should immediately (after the reply is given) write down the means whereby he proposes to prove his averments. This third stage (pāda) is called kriyā i. o. proof. Sadhya and kārya are synonyms, kriya and sādhana also are synonyms ( Kāt, in Aparārka p. 616, Vyāsa in Sm, C. II. p. 54). The rules about burden of proof are laid down by Hārita ( 9. in Mit, on Yāj. II. 7, Aparārka p. 616). In a reply of denial, the burden of proof is on the plaintiff, in a reply of former judgment or of a special plea, it is on the defendant and in a reply of admission no question of burden of proof arises. Compare also Nār. II. 31. The Mit. on Yāj. II. 80 states another rule that an affirmative proposition has to be proved by him who asserts it (bhāvapratijñāvādina eva kriya). Yāj. II. 22, Nār. II. 28-29 and IV. 69, Br. ( in Sm. C. II. p. 54 ), and others say that means of proof are two-fold, human and divine, and that docu ments, witnesses and possession are the human means of proof (Vas. 16. 10 also ), while the ordeals of balance and others are divine means. Yāj. II. 22, Nār. II. 29, Kāt. 217 expressly state that ordeals are to be resorted to only when none of the human means are possible or available. If one party relies on human means alone and the other offers divine means, the king (or judge ) has to accept human means and not divine; in disputes among men, if there be human means of proof though reaching

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430. बेतु तिष्ठन्ति करणे तेषां सम्वैविभापमा । फलयित्वोसरं सम्यग्दातम्पैकल्प mai # TT. in frau II. 50.

MI

Preference among means of proof

305

(or covering ) only a portion (of the allegations in the plaint) then human means should be accepted and not divine ones even though the latter may cover the whole ground ( Kāt. 218-219 9. by Mit. on Yaj. II. 22). This latter rule is based on the proposition laid down in Yaj. II. 20 and Viṣṇudharmasūtra VI. 22 that when a party totally denies a claim and the opponent establishes by evidence a substantial portion of it, the judge may pass a decree against the denying party for the whole of the claim. This is practically the same as the maxim ’ omnia praesumuntur contra spoliatorem ‘. 431 Therefore the general rule was that the divine mode of proof was to be resorted to only in the absence of any human means of proof. Kāt. 229 (q. by Mit. on Yāj. II. 22, Aparārka p. 629 ) allows witnesses or ordeals when the disputo is started with reference to sāhasa, assault or abuse and causes that spring from force and Kāt. 230 (4. in Sm. C. II. p. 51 ) provides that, in the case of a person guilty of sāhasa perpetrated in secret, investigation has to be made by divine proof. Kat. 225-228 (q. by Mit. on Yāj. II. 22, Aparārka P. 629, Sm. C. II. pp. 53-54) lay down certain rules about preference among the several means of proof: whatever are declared as the conventional usages of the associations of traders, of guilds (of artisans) and of groups (of brāhmaṇas ), the means of proving them are documents and not ordeals nor witnesses; enjoyment 431a ( or possession) alone is weightier in the case of the making and (the use of) doors and ways, as also in the case of water-courses and the like (i. e, in the case of easements ) and not writing nor witnesses; in the case of things promised to be given but not given, when a decision is to be given in disputes of servants with masters, in the matter of taking back a thing after it is sold or when a person having purchased a thing does not pay the price, in gambling and prize fighting-when in these matters disputes arise the means

431. Vide H. of Dh. vol. I. p. 204 and n. 367, where a half verse from the drama Vikramorvasiya (IV. 17) is quoted containing the same proposition and it is shown that Nārada as quoted in V. M. p. 311 and Par. M. III. p. 203 contained the same half verse. The half verse is विभाक्तिकेदेशेन देयं यदभियुज्यते. The maxim cited above is relied upon in Ardeshir v. The Collector of Surat 3 Bom. H. C.R. (A. C. J.) p. 116 and in Framji v. The Commissioner of Customs 7 Bom. H. C. R. (A. C. J.) p. 89.

432. In Lalubhai v. Bai Amrit I. L. R. 2 Bom. 299 at p. 312 thera is a reference to Kāt. 226 Ercartreut we ari giniku a uri voru ferre HOT: #. There is a similar verac of Kāt. 314.(q..in retar II.. p. 67) Per

n ara i grmit format forl.’.

39

306

[ Vai

of proof are witnesses and not documents nor ordeals. Marioi (q. by Sm, C. II. 60, V. P. P. 141 ) states that as regards the sale, mortgage, gift or partition of immoveable property & document ( should be executed as it ) enables the person ( in whose favour it is executed) to acquire (clear) title and freedom from doubt 43% (even after the lapse of years). It is in consonance with this that the Indian Legislature (in the Transfer of Property Act, IV of 1882 ) requires writing and registration as regards the sale, mortgage and gift of immoveable property. Nārada IV. 75 very concisely hits the special characteristics of each pramāṇa:

a document is always strong, witnesses are strong (as evidence) only as long as they are alive, possession becomes strong as time passes. The comparative strength of the several kinds of evidence is well put by Bphaspati 433: Witnesses are superior to inference ( circumstantial evidence ), a document is superior to witnesses, undisturbed possession for three generations is superior to all these’. Kāt. 221 (q. by Mit. on Yāj. II. 80 and V. P. p. 80 ) gives the warning that when a litigant abandoning a strong ground or means of proof resorts to a weak one to prove his case, he would not be again entitled to rely on that (strong ground of proof ) after the members of the court have decided as to who should succeed. This practically propounds the same rule as that of constructive res judicata contained in explanation 4 to section 11 of the Indian Civil Pro. Code (of 1908).

The means of proof will now be briefly dealt with in order. And first come documents. Those in search of an exhaustive treatment may usefully consult Dr. Amareshwar Thakur’s * Hindu Law of Evidence’ (Calcutta, 1933).

When writing was first employed in India and how the Indian Brahmi alphabet was derived have been moot points for many decades among scholars. Max Mūller’s theory (“History of Ancient Sanskrit Literature’ p. 507 ) that the use of writing for literary purposes was unknown to Pāṇini was thoroughly exploded by Goldstūckor in ‘Pāṇini and his place in Sanskrit Literature and was later on abandoned by Max Mūller himself.

432. स्थापरे पिकपायाने विभागे दाम एव च । लिखितमामुयासिदिमविसंवादमेष unft q. by far II. p. 60.

· 433WOHITUTI FI #navut for IT I P ar fugoti ihmet mre . in no. #1. p. 350, a p. 224; the same is 70T (315) Acc. to 14. 1. p. 313. Probably RMT took over TUETTEIs verse or thera may be some mistake in quoting.

Origin of writing in India

S07

Then Būhler ( in ’the Origin of the Indian Brahmi alphabet’) started the theory that Brāhmi was derived from a foreign Semitic script about 800 B. C. and this hypothesis held the field for a long time ( vide 8. g. Rhys Davids in ‘Buddhist India’ chapters VII and VIII). Even Western scholars are not now prepared to accept this dating of Būhler; vide Cambridge History of India, vol. I.p. 141 (1922). The excavations at Mohenjo daro tend to throw grave doubts on this theory and discredit it. At Harappa and Mohenjo-daro there is writing (not satisfactori ly deciphered yet ) on burnt clay and pottery. The Piprahva vase shows writing on stone several centuries before the Christian era and the Sobagpur copperplate inscription is the earliest writing on copper plates yet discovered ( vide Annals of B. O. R. Institute, Vol. XI. p. 32 ff). This is not the place to discuss the questions about the origin of the art of writing in India and of the Brāhmi script. It cannot be gainsaid that the most ancient dharmaśāstras refer to writing as well-known. Gaut. XIII. 4 appears to refer to a witness signing himself as such on a document. Vas. 16. 10, Vispudharmasūtra VI. 23, Yāj. II. 22 mention likhita (document) as the first means of proof. Manu VIII. 51 uses the word karana in the sense of document (arthepavyayamūnam tu karanena vibhāvitam), in VIII. 168 refers to documents obtained by coercion and in IX. 232 to fabricated royal edicts ( kūṭaśāsana). Kaut, has a special chapter ( II. 10) on royal writings (sāsana), in which he dilates upon the qualifications of the king’s scribe, on the contents of an official document, the good points required in an official missive, on various divisions of writings and on the faults in official writings that are to be avoided. In I. 11 Kaut. prescribes that the king should hold consultations with absent ministers by sending a letter (patra, a leaf of palm or a piece of birch bark or similar material) and in I. 19 states that consulta tion by letter (para) with the council of ministers should be held in the fifth part of the day. In II. 7 Kaut. advises the con struction of rooms with shelves for books containing accounts (akṣapatalam nibandhapustakasthānam kārayet ). Vide also Kaut. II. 21, II. 30, IV. 9, IV, 10 for references to writing in various other connections. Kaut. (III. 1) appears 434 to use the word karana - in the sense of document and gives a rule which is the same as Yāj. II. 23. Yaj. I. 319 speaks of land grants being written or

434. fi* erant oporara Fir e dee III. 1; compare ar. II. 23 faring TESTEGUT FEST I mutafant a go ..

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engraved on cloth or copperplate. Megasthenes (McCrindle p. 69 ) no doubt says that Indians have no written laws, but there is no doubt that he is under some misapprehengion as to what he was told, since in another place (p. 83 ) he refers to philosophers committing useful suggestions to writing. Similar ly Strabo ( XV. 1. 53-54 ) states that the Indians were ignorant of writing, but (67) narrates that Nearchus states that Indians write letters on cloth. One of the oldest copperplate grants is the Taxila plate of Moga (identified with Moa of the Sakas ) and is not later than 120 B. C. Vide E. I. Vol. IV. p. 54 and Rapgon’s ‘Indian coins’ p. 7. It appears that wooden boards were used for writing ephemeral matters and patra for more permanent use, as Kāt. (p. 293, n. 400 above ) states that the first information was to be written on a board with chalk and the formal plaint on a leaf ( patra). The Lalitavistara ( 10th chap. p. 143, B. I. ed.) states that the Buddha used a board of sandal-wood for learning the scripts (-candanamayam lipi phalakam-ādāya ).

Yaj. II. 84-94, Nār. IV. 69-75 and 135-146, Bṛ., Kat. 249-312, Sukra II. 291-318, IV. 172-182 and several digests devote great attention to documents. A fow salient points only will be brought out here. Nār. (IV. 70-71 ) eulogises documents by saying that if the Creator had not created writing which is like an excellent eye, the world would have come to grief and that a document is an indubitable means of apprehending the time, the place, the object, the material, the extent and the duration of & transaction. Bṛ. (q. in V. P. p. 141 ) says that, since 435 people begin to entertain doubts (about a transaction) oven in six months (from an occurrence or transaction) the Creator therefore created in the hoary past letters which are recorded on writing material (patra). The Lalitavistara ( about 2nd or 3rd century A. D.) mentions 64 scripts which were known to the Buddha, among which the first is Brahmi ( 10th chap. p. 143 ). Nār., Br., and Sukra probably try to explain why the alphabet current in their days was called Brāhmi ( it was created by Brahma). Sukra II. 297, IV. 5. 172 are similar verses. The texts divide documents in different ways. Viṣṇu 436 Dh. S,

saying jent eye, bubitable menn

435. पाण्मासिकेपि समये भान्तिः सखायते दणाम् । धात्राक्षराणि सष्टानि पत्रासवा *991 ST YE. q. by 19. f. p. 81, 14. 4. p. 141 ; fragt: g uttered निर्णायकं परम् । … अनुभूतस्य स्सस्प लिखित निर्मित पुरा। यस्नाश बहाणा वाचावणे

offung # F# II291 and 297.

T ot afirmapato Train free VAQT VII. 3.

III

Classification of documents

309

VII. 2 dividos documents into three kinds viz. those written before the king (i. e. by public officers ), those bearing the superscription of witnesses and those without witnesses. The first is a document written in a state office by a scribe appoint od by the king and bearing the signature of the head or superintendent of the office. This is just like the registration of documents in modern India. Br. 437 (q. by V. P. p. 141, V. May, p. 24) divides documents into three sorts viz. royal writing, writing made at a fixed place and that written in one’s own hand. Nār. IV. 135 speaks of two kinds viz. one written by the executant himself in his own hand and that written by another;( the first of these is valid) without attesting witnesses, while the second requires to be attested. In the former no writer (lekhaka ) nor witnesses are necessary, while in the latter both are necessary. Even now in India no deed concern ing even immoveable property is required by law to be attested except mortgages and gifts. The author of the Sangraha, the Mit. on Yāj. II. 84 and several others divide documents into rājakiya (public) and jānapada (private or of the common people ). The V. Mayūkha (p. 24) says that laukika and jānapada are øynonyms and jānapada document is of two kinds viz. written by the executant himself in his own hand and that written by another, and that the first may be without attesta tion of witnesses, but the other must be attested. On Yāj. II. 22 the Mit, divides documents into śāsana and ciraka. The first is the same as rājakiya (described in Yaj, I. 318-320) and ciraka is practically the same as jānapada writing. On Yāj. II. 89 the Mit. remarks that a royal deed must be written in correct and elegant language but a document executed by ordinary people is not required to be in correct Sanskrit, but may be written in the local dialect of the parties. Yāj. II. 89 states that a document written by the executant himself in his own hand is autho ritative except when it is brought about by force or fraud. Yāj. II. 84-87 prescribe that a document of debt or the like should be written down by mutual agreement, that the creditor’s name should be placed first, that it should

437. ad Fur

T Tori era foarte #fiw nagu #: Tr. in 19. #. p. 141, 19. #. p. 24, art. #f III. 119. Furwa means * writton in a well-knowa place by a professional scribe appointed by the king or his officers and attested by witnesses.’ राजकीयं जामपदं विविध लिखित

Im er et f oreg a garafat q. by tw. Fot. p. 82; 876. नि. p. 83 explains स्थानलेखग्रामजनपदादिग्वाधिकृतकायस्पकतं तदभ्यक्षकशिक्षित

rafarga.

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mention the year, month, half month, tithi ( day ), the names, caste, gotras, the Vedic School, the names of the fathers of the parties, that when the writing is finished the debtor should write at the end that the deed is approved by N. N. (the execu tant) son of so and so, that an even number (i. e. not less than two) should attest the document, stating their father’s names and that they attest as witnesses and the scribe should write at the end that he wrote the document at the request of both parties. If the debtor or any witness cannot write, his signa ture should be made by another in the presence of all witnesses (Nar. q. by Mit, on Yāj. II. 87 and by Vy. Nir. p. 87 without name ). Rājakiya documents are of three kinds (acc. to Br. quoted in V. P. p. 141, V. May. p. 24) viz. sāsanı (a royal grant of land), jayapatra (a judgment deciding a law-suit), prasāda-patra ( a deed showing the king’s pleasure at the devoted service or bravery of a person); acc. to Vasiṣtha (g. in Sm. C. II. p. 55 and V. May, p. 28) it is of four kinds viz. sāsana, jayapatra, ājñāpatra (a royal command addressed to feudatories, high or low officers like the wardens of the marches ), prajfhāpanāpatra (a writing of request addressed by the king to sacrificial priests, a purohita, teacher, learned brahmapas or other highly honoured persons); it is five-fold acc. to S. V. pp. 111-113 viz. sāsana, jayapatra, ajñāpatra, pra jñāpanāpatra and prasā dapatra. Kaut. in II. 10 speaks of seve ral kinds of royal orders and names them, such as prajñāpana (request by a messenger about what another prays), ajñāpatra (as above), paridāna (honour to the deserving or gift in distress), parihara (remission of taxes for certain castes or villages by the king), niss stilekha (writing whereby the king accepts the actions or words of some trustworthy person as his own), pra vȚttika (conveying information about some portentous happen ing or some news about enemies etc.), pratilekha (reply in accordance with discussion held with the king on a message from another), sarvatraga (order addressed to high functionaries and officers for the welfare of travellers). The contents and form of royal grants have been described in H. of Dh. vol. II pp. 860-861. The jānapada writings are divided into various sorts, seven (aco, to Br. g. by Aparārka p. 683, Sm. C: II. p. 60) or eight (aco, to Vyasa in Sm. C. II. p. 59 ) and the Sm, C. remarks that there is no emphasis on the number and there may be many more varieties. Bp. (S. B. E. vol. 33 p. 305), Kāt. (254-257) and others mention and define the following jānapada writings; bhāga- or vibhāgapatra’ (deed of partition), dānapatra (deed. of gift),

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Varieties af documents.

311

krayapatra (sale deed), adhānapalra or adhipatra ( deed of pledge or mortgage), sthitipatra or samvitpatra (deed of convention, which is made by the inhabitants of a village or city or the members of a corporation or guild by mutual agreement for settling their conventions), dāsapatra (deed of bondage to serve executed by a person devoid of food or clothing), ralekha or uddhārpatra (bond of debt promising return at a future date with interest ), risuddhipatru (deed of purification given to a person with the attestation of witnesses when a penance for a sin has been per formed), sandhipatra (deed of peace when a compromise in the presence of leading people after a charge of the commission of a crime has been made), simāpatra (deed of boundary when a dispute about it is settled), upagata (a receipt passed by the creditor to a debtor on payment of the whole or part of a debt, Yāj. II. 93), anvādhipatra (a sub-mortgage i. e. where the mort gagee or pledgee mortgages or pledges the property or thing to another and hands over tbe former deed to his own creditor). The two branches of private documents (jānapada) are either ciraka or not ciraka; ciraka is defined as a document written by hereditary scribes residing in the capital, who are approached by the parties and bearing the signatures of the parties and witnesses and the names of their fathers (Sangraha q. by Sm. C. II. p. 59, Par. M. III. p. 127). Vide n. 437 above and Sukra II. 299-318 and IV.5.172-177 for definitions of these and other kinds of documents. But acc. to Vyasa quoted by Sm. C. II. p. 59 private documents are of eight kinds viz. ciraka, upagata (a receipt), svahasta (written by the executant himself), ādhipatra, krayapatra, sthitipatra, sandhipatra, viśuddhipatra. Some works like the Vyavahārasāra (p. 69) and the Mit. write the word as ciraka and not ciraka. It was so called (viz, ciraka ) probably because it was written on the back (of the bark of the birch or some other tree). If the proper word is ciraka then it was employed because being executed by scribes appointed by the king, it had validity for all time (cira) as compared with purely private documents. ‘Ciraka’ in this last sense seems to be equal to sthānakrta’ of other writers.

Nār. 438 IV. 136, Viṣṇu. Dh. S. VII. 11 and Kat. (252) require that a document is held valid which is not adverse to the cus tom of the country, the contents of which follow the rules

438, str MU TIL ATY. IV. 136; FATTNAET VII. 11.

TOTURNERTEI HAT

TT undai TRENA

HAT

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regarding pledges (and other transactions) and the sequence of the sense and of the words in which is not contradictory or confusing. Sm. C. II. p. 59 applies the word 139 pañcārūdha (on which five are recorded) to documents that are signed by the creditor, the debtor, two witnesses and the scribe. The Sarasvativilāsa p. 114 holds that pañcārudhatva consists in having the creditor, debtor, witnesses ( as one item ), scribe and the matter to be written, Hārsta and Vyasa (q. in 8m. C. IL p. 59 ) employ the dual (sākṣiṇau), while Yāj. II. 87 employs the plural. Therefore ordinarily two witnesses sufficed, but in very important writings there should be more witnesses. Viāva. rūpa reads ‘asamāḥ’ in Yaj. II. 87 and requires three witnesses as the minimum. Nār. IV. 137, Viṣṇu440 Dh. S. VII. 6-10, Br. (S. B. E. vol. 33 p.307 v. 23.), Kāt. (271) state that a document is invalid that is executed by a person intoxicated, by one already charged (with an offence), by a woman, a minor, that has been brought about by threats or deceit or coercion, by one dying, by one diseased, by a lunatic, or by those that are dependent. Viṣṇu Dh. S. (VII. 8-9) and Kat. 273 (g. by V. M. p. 338, Apararka p. 686, Par, M. II. p. 131) state that a docu ment may be held invalid owing to defects in the witnesses or in the scribe or to the fraud of the creditor or executant.

Nār. IV. 145, Kāt. (306-307), Samyarta ( both quoted by Aparārka pp. 691-692) and Br. (S. B. E. 33 p. 309 verse 31 ) say that no oral evidence should be allowed to contradict the (terms of a) document, that the mode of proving ( a matter) by a docu ment is always superior, that a writing can be refuted or superseded only by another document relating to the same matter and not by the oaths of witnesses and that if oral evidence

439. उत्तमोधमों च साक्षिणी लेखकरतथा । समनापेन पी लेखपं कुर्भात ARTTUN FET erfrita UTA Arraoney ICT i gran p o upareri धर्मसाक्षिदपलखकरूपपपुरुषाढस्यास्पशास पत्रमिति लोके पहाल साक्षिसंख्याधि

e uri TTTTT Otor fat i mfag. II. p. 59.

440. maTARRATUTE I frana

ARTE ससाक्षिकमपि । साइग्षिधेन लेखकेन लिखितं । श्रीबालास्वतन्त्रमतोम्मचभीततापित. ** tagua VII, 6-10; Klitgaard Hat foretrefier

T you fruta I . q. by F T. II. p. 62. Manu. (VIII. 165 and 168) declares that fraud vitiates all transactions. Compare with Vianu Dh. S. sections 10-12, 15-18 of the Indian Contract Act (of 1872). In I. L. R. 5 Bom, 99 at p. 104 strimatta’ in Br. (S. B, E, vol, 33 p. 307 v. 23) is taken as one word and rendered under female or aphrodisiac influence’, which is not correct as shown by the texts of Vigau And Kat., where the two words are separated by other words,

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Proof of documents

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were allowed to overrule the force of documents there would be confusion and an end to all written transactions441. If there is a conflict among documents then a jānapada document (written by a scribe and attested ) is superior to one written in the hand of the executant himself and a public document is superior to a jānapada one ( Vyasa q. by Sm. C. II. p. 66, S. V. p. 122 ).

Yāj. IL 91, Nār. IV. 146 and Kāt. 31% (q. by Aparārka p. 687 ) prescribe that when a document is in another country or when it is illegibly written, when it is lost or its letters have become indistinct (by lapse of time or other causes) or it has been stolen or is crushed or burnt or shattered into pieces, another document may be caused to be written ( if both parties agree): but if they do not agree and the contents have to be proved or if the executant denies his signature, then Nār. IV. 142 and Kāt. ( 282 q. by Sm. C. II. p. 63 ) say that time may be given to bring it from the foreign country or the contents may be proved by the evidence of the attesting witnesses or of the scribe or of those that have seen it. This shows that the smrti law required the produc tion of the document itself as primary evidence, but allowed secondary evidence only in exceptional cases. 142 If a document belonging to one man is produced by another the latter has to explain his custody of it 443 ( Vyāsa q. by Aparārka p. 690, Sm. C. II. 66). Kāt. (308 q. by Sm, C. II. p. 65) sayg144 that just as the reflec tion of a person or thing made in a mirror is seen as if it were real though it is unreal, so clever people can fabricate documents resembling (the genuine writing of a person). Vyāsa (in Aparārka p. 688, Sm. C. II. 65 ) and Br. ( S. B. E. vol. 33 p. 307

441. नदिव्यैः साक्षिभिर्वापि हीयते लिखितं कचित् । लेख्यधर्मः सदा श्रेष्ठो तो नाम्येन हीयते ॥ तयुक्तिप्रतिलेख्येन तद्विशिष्टेन वा सदा । लेण्यक्रिया निरस्येत न साक्षिशपथैः mfun # 45. q. by starrin p. 692; nr FraXAHOIont Poppy pupot Iṣ: Faianaut 19 # of q. by s e p. 692. Compare sec. 92 of the Indian Evidence Act. The poet Magba gives expression in his owo lacoaic way to the same idea in patriao a

W W E T fyrry II. 70.

442. Compare sec. 63 and 65 of the Indian Evidence Act about the meaning of secondary evidence and the circumstances under which it can be given,

443. regret i Tarah start da que *: RTF q. by strat p. 690.

444. Pored tur TANPArgetimor Tyft shut if OUT: * TRUTin fi II. 65, 4, 9, p. 148, rue, fm. p. 91 (it attributes the vorso to w ).

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vy. 20-21 ) say the same thing and add that documents have to be carefully scrutinized and that no certain conclusion can be established by documents alone ( in every case ), that women, minors and illiterate persons are deceived even by their relatives by the fabrication of documents bearing the names of these (women and others) and that this has to be investigated with skill. When there is a doubt about the genuineness of a docu ment, it can be established by comparison with other documents admitted to be written or signed by the same person, by ratioci nation, by the probability of the two parties being together at the time of the transaction, by citing the attesting witnesses, 445 by the peculiarities or flourishes in writing certain letters or making certain signs (in the writing questioned and in other admitted writings), the previous transactions between the par ties (or their subsequent conduct), and the source of the acqui sition of the subject matter in dispute (Yāj. II. 92, Viṣṇu Dh. $. VII. 12, Nār. IV. 143-144, Kāt. 283 q. in Mit. on Yāj. II. 92). Viṣpu Dh. S. (VII. 13) and Kāt. 446 285-286 ( q. by Aparārka pp. 689-690) prescribe that if the debtor, creditor, witnesses or the scribe be dead the authenticity of the document has to be ascertained by (a comparison of the signatures on the disputed document) with other specimens of their handwriting or signatures or other documents executed by the debtor. Kāt. 287 (g. by Aparāka p. 689, Sm. C. II. p. 64 and Par. M. III. p. 134) states the striking147 rule that when a document bears the royal seal, that document is presumed to be authentic, even though all the three (viz. the debtor, the witnesses and the scribe ) are dead. This shows that documents bearing the king’s seal or that of royal officers were regarded as prima facie genuine and this rule is analogous to the provisions in sec. 79 of the Indian Evidence Act and sections 59-60 of the Indian Registra tion Act. That even copperplate grants were sometimes forged is clear from the reference in the Madhuban plate of Emperor

445. Vide sec. 68 of the Indian Evidence Act about the proof of attested documents.

446. अथ पचवमापको लेखकः सह साक्षिभिः । तस्वहस्तादिभिस्तेषां विशुध्ये न संशयः ॥ ऋणिस्वहस्तसन्देहे जीवतो वा मृतस्य था । तत्स्वहस्तकृतैरन्यैः पत्रैतल्लेख्य jaura: # 109r. quoted by ty. At. p. 339, warren pp. 689-690. TU. #T. III, p. 134; Fae. II p. 63 ascribes the 2nd to yên. Compare sec, 69 and 73 (for proof of handwriting by comparison) of the Indian Evidence Act.

447. सहदेपि यदालेख्ये मुताः सर्वेपि ते स्थिताः । लिखितं तत्प्रमाणं तुमुतेष्वपि हि ng # 41. quoted by PTRER P. 689, ftare. II. p. 64.

21

Forgeries of copperplates

315

Harsa (E, I. VII. p. 155, 158 ), and from the Tārāchandi Rock Inscription (in Bihar) of Mahānāyaka Pratāpadhavaladeva (in E. I. XX. Appendix No. 340 ) of samvat 1225 which declares that a certain copperplate purporting to be issued by Vijaya candra of Kanoj was forged. Vide Fleet in I. A, vol. 30 pp. 201 223 for many forged grants. Verses (variously attributed to Kāt. or Brhaspati by the digests) state that when a loan ( recorded in a document) has not been expressly claimed by the creditor able to claim from a debtor who is able to pay off and who is at hand, the document loses its validity because a suspicion arises that the debt has been paid off and that a document executed more than thirty years before which has never been seen ( by any body ) nor read out ( by the creditor to any body ) does not attain validity even though the witnesses on it are living. Nār. IV. 141 is very similar to this last. Kāt. 298–299, 301 (q. by Par. M. III. 136, Mit, on Yāj. II. 24, Aparārka P. 690-691 ) prescribe that if no objection is raised for twenty years as regards a patent fault in a document of debt or pledge or of the settlement of boundaries, then the document ceases to be voidable. Kāt. 275 and Bṛ. ( S. B. E. vol. 33 p. 302 V. 25 ) both quoted by Aparārka p. 671 and V. P. p. 122 require that the latent defects in documents or witnesses must he declared ( pointed out) by the disputant at the ( proper ) time (i. e. when they are produced), while patent defects may be considered by the sabhyas at the time (of the consideration of the evidence) by reference to the rules of the śāstra. Yāj. II 93-94, Viṣṇu Dh. S. VI. 25–26 448 prescribe that when a debtor pays part of a debt, the debtor should write on the back of the document how much he paid or the creditor may hand over to the debtor a writing of receipt signed or written by himself, particularly when the original document is not at hand, and when the whole debt is paid or the contract is fully performed the creditor should tear off the document or should execute another document in order to make clear the fact of satisfaction

The fabrication of royal edicts and private documents was so much condemned by the sentiments of society that Manu IX, 232 and Viṣṇu Dh. S. V. 9-10 prescribe the extreme penalty of death for such offences as in the case of the murder of women, minors and brāhmaṇas. Yāj. II. 295 ( = Matsya 227. 202)

our faut chat

448. Portaria rae porai gizda 31 ALTH Fantar grafreguna VI. 25-26.

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presoribes the highest fine for him who adds to or writes legs than what was intended to be declared in a royal grant or edict. Saṅkha also prescribes death or the excision of a limb for fabrication of documents (g. by V. R. pp. 298, 369 ).

For detailed treatment about documents in ancient and medieval India two papers in the Annals of B. O. R. Institute, vol. IX. pp. 49-81 and in the Journal of the Andhra Historical Society, vol. 18 pp. 203-232 may be consulted.

TA