16 Contracts

CHAPTER XVI.

CONTRACTS

There are only three titles of law, viz, recovery of debts, the relation of husband and wife (stripunsayoga) and partition of wealth (dāyabhāga) that are of importance to modern Hindus, since to a very large extent they are oven now governed in these matters by the ancient Hindu Law as interpreted by the commentators. These three topics therefore have to be described in detail while other titles will not and cannot be allowed to occupy much space. In almost all smrtis and digests of Hindu Law rṇādāna (recovery of debts) is treated of first. Therefore here also that subject will be taken up first. A good deal of the matter falling under the title of the relation of husband and wife has already been dealt with in the 2nd volume of the History of Dharmaśāstra pp. 427-636. The topic of dāyubhāga will be dealt with last of all, the other topics being taken up in the same order as in Manu. Many of the vyavahūrapadas are concerned with the law of contracts in various aspects, viz. the contract of debt, of pledge or mortgage, of bailments, of sale, of partnership, of hire and service.

Our writers do not set out with an analysis of the con ception of contract in general. They had before them the ancient 18 titles of law, many of which related to various kinds of contracts and therefore they take up one title after another, in the order contained in Manu or in Nārada ( as the Sm, C. II. p. 206 expressly says). But it is not to be supposed that they did not evolve certain general principles about contracts. They do say a good deal about the competence of persons to enter into contracts, about fraud vitiating all contracts, about damages for breach of contract &q. Sim ilarly the dharma sāstras do not lay down a general Code of rules applicable to all transfers of’ immovable property, nor do they treat of transfers by way of sale, mortgage or gift in separate sections. What they have to say on these transfers is tācked on to some vyavahārapada e. 8. they speak about sales and exchanges of land under asvāmi-vikraya and simāvivada, about gifts under dattāpradānika and about mortgages under pnādana. As this work has to represent what the ancient law was like the same412

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arrangement has been followed here. Similarly the law of crimes is not to be found in one place. It is scattered under different titles of law such as vākpāruøya, dapdapārusya, sāhasa, strisangrahaṇa and steya; nor is there a complete analysis of intention or motive or of the right of private defence, although all these subjects are briefly dealt with in the smptis in different places.

A great deal has been said by ancient writers about what. persons are competent to enter into transactions ( vyavahāra ) The Arthasastra (in III. 1 ) 661 has a lengthy disquisition on it Briefly, it holds that dependent persons, minors, extremely old people, those charged with grave sins, sannyāsins, persons who are devoid of a limb and those who are addicted to vices (like drinking and whoring) are incompetent and agreements made with such people are invalid. Among dependent people Kautilya mentiong a son whon the father is alive (and manages the affairs), a father when he has a son (who manages the family affairs ), a brother who has left the family, a younger brother whoge share has not been separated, a woman whose husband or son is alive, a slave or a hired servant. He states that these may enter into binding agreements if those on whom they are dependent authorize them to do so. He further says that contracts made by persons that are at the time of making them intoxicated or are under the influence of wrath or are distressed or are of unsound mind or under duregs (imprisoned or confined ) are invalid. Yāj. (II. 31-32) concisely puts down the same propositions by saying that all transactions brought about by force or fraud should be declared (by the king ) to be un enforceable, so also those entered into by women or the other persong specified above or entered into at night, or in the interior of the house or outside the town or village ( in a forest &c.) or with one’s enemy or by persons unconnected with or unauthorized by the persons who are to be bound by them. 662 Manu (VIII. 165 and 168 ) also declares that all transactions (such as sale, mortgage, gift) brought about by force or fraud are

661, Wine yuti, FaTANT 59, for UTT,

F I AT, T हेनाविभक्तान, पतिमल्पा पुजवा चिपा, दासाहितकाम्यान, भमासातीतग्यपहारा. भ्याम् , अभिशास्तमनजितम्पापसानिमियाम्पत्र मिसम्पपहारेन्यः । तथापि कनातेन #unitearvata at SAT TUERT * Fartgs I sum III. 1. . 662. It should be noted that the rules of Kaut. and Yaj. are in remarkable agreement with sections 11 to 19 of the Indian Contract Act ( IX of 1872),

m) Transactions of dependent persons

413

null and void. Nār. IV, 26-42 treat this subject 663 exhaus, tively. Some of Narada’s dicta are interesting. He says: ’ in this world three are independent viz. the king, the Vedic teacher and the head of the house in his own house (32). Wives, sons and slaves are not independent; the head of the house has independent power as to what belongs to him by inheritance (34).’ Kāt. (497) also prescribes that one should not give a loan to women, minors or slaves. When the texts say that women are incompetent to make contracts, what is meant is that they cannot make contracts binding on their husbands or family or against the family property. Women are not inherently in competent to deal with their own separate property except that the husband has some control ( these matters will be discussed at length later on under stridhana). Another proposition laid down by Yāj. II 23, Nār. IV. 97, Kāt. (517) and others 664 is that in all transactions relating to a debt or any other title of law the last act is the deciding factor ; but in the cases of gift, pledge or purchase each prior transaction (of gift &c. ) is of superior efficacy to the succeeding one. 665

After the establishment of British rule in India during about 150 years numerous publications dealing with Hindu customs and usages and the Hindu law of debts, contracts, adoption, family rights, partition and inheritance have been published. It is impossible to give an exhaustive list of these nor is it neces sary to do so. Most of them have now only an academic or historic interest. But a few of thon must be mentioned for their worth, for purposes of study and for a knowledge of the. modern Hindu, Law as administered by the British Indian courts

They are : Bannerjee’s ‘Hindu Law of Marriage and stridhan’

663. The Vyavahāramātṇkā p. 288 quotes five verses as from Kaundinya which are almost the same as Nārada IV. 29, 30, 39, 34, 40 respectively.

The learned editor does not notice this.

Pri urgerier i

s entras qui reforma MITT IV. 97 ; Watu guta a 1801: ga r raf vir.

THE # 47. 517 4. by far. II.p. 144, ñ. . p. 35, fr. ft. p. 237.

665. For example, if A establishes that he lent a sum to B but if the latter establishes that he ropaid the amount, this later fact of repayment is decisive of the dispute t A files a suit for recovery of the money. If A mortgages a field to B for a loan and the mortgagor the same field to C, the mortgage of B, being prlor, is superior to that made in favour of C. . The same prisciple is laid down in sectioa 48 of the Transfer of Property Act

IV. of 1882.)

ple de leiding prior, ia superiore e mortgages the same money. If A

I Vol.

(5th ed. of 1923); Colebrooke’s Digest of Hindu Law, which is a translation of Jagannatha’s Vivādabhangārnava ( 3rd ed. of 1864, Madras ); the several volumes of the Bombay Gazetteer and the Gazetteers of the other provinces and the Imperial Gazetteer of India; A. Ghosh’s Law of endowments ’ ( 2nd ed., 1938); Dr. Jolly’s Tagore Law Lectures on Partition, Inheri tance and Adoption and Recht und Sitte translated by Prof. Batakrishna Ghosh ( 1928 ) ); Mayne’s Hindu Law (10th ed. of 1938); Mulla’s Hindu Law (9th ed. of 1940); K.L. Sarkar’s ‘Mimansa rules of interpretation’; G. C. Sarkar’s Hindu Law and Hindu Law of Adoption (2nd ed. 1916); Rajkumar Sarvadhikari’s ‘Principles of the Hindu Law of Inheritance’ (2nd ed. 1922 ), Dr. P. N. Sen’s General Principles of Hindu Jurisprudence’ (1918); Steele’s Law and custom of Hindu castes’ in the Deccan (London, 1868 ); Stoke’s Hindu Law Texts ( a work constantly quoted by the Courts and the Privy Council) containing English translations of the Mitaksarā, the Dayabhāga, the Vyavahāra mayūkha, the Dattakamimāmsā, the Dattakacandrikā, the Dāyakramasangraha; West and Būhler’s Digest of Hindu Law.

The idea of the liability to pay off one’s debts was developed in India in the most ancient times. In Rg. VIII. 47. 17666 the poet exclaims’ Let us drive away the evil effects of bad dreams as we pay off debts’. In Rg. X, 34, 10 ( the gambler’s lament) it is stated that the gambler, because he owes a ( gambling ) debt, is afraid and approaches the houses of others at night, desiring wealth ‘. 667 This indicates that a debtor was afraid of being detained by his creditor in those days. Rg. VIII. 66. 10 indicates that money-lenders made a stipulation to receive double of what they lent, ‘Indra strikes by his power all panis who make representations of taking double ‘. 668 The Ait. Br. 33. 1 (tnam-asmin san-nayati ) 669 employs the very verb * san-nayati’ which occurs in Rg. VIII. 47. 17. The Atharvaveda VI. 117, 3 and Tai. Br. III. 7. 9. 8 contain the same verse about a man being free from the obligations of this world, the next

666. TUTTI TUT #14 que pot #ara que ya ATRO FUT AFPWTA :

E T U . VIII. 47. 17. 667. RUN for WATTSPH I . X. 34.‘10.

668, form at n #TUT ofi*eft # #. VIII. 66. 10 The word we is very like a prêkrit word.

669. tammt wire m ore

or afirmat

wat forro Tarrott og trenia . #. VI 3. 10.5 : sporta स्लिम संगपरपराव पगाति । पिता पुषस्य जातस्प पहजीवतो हसम्पै.मा. 33.11

MI)

Idea of debt in the Veda

415

world ( of pitss ) and the third world (the world of gods ). 670 The Tai. S. (III. 3. 8. 1-2 ) uses the very word ‘kusida ‘, which occurs 671 in the Dharmasūtras and smrtis ( for money-lending) when it says, ‘O Agnil whatever debt has not been paid back by me, the tribute that I owe to Yama, here do I make return of it; may I be freed from that debt 1. The Sat. Br. XIII. 4.3.11 associates kusidin with black magic in the Pāriplava. The Nirukta (VI. 32 ) while commenting on Rg. III. 53, 14 explains the word Pramaganda’ occurring therein as ‘one who is born of a family that is extremely usurious ‘, 672 Pāṇini employs the technical word ’ uttamarpa’(creditor ) in his sūtra ‘dhārer-uttamarpah’ (I. 4. 35), he speaks of “adhamarnya’ (the position of a debtor) in II. 3. 70 and the word “pratibhū’ occurs in Papini II. 3. 39, the word ‘vrddhi’ (interest) in V. 1. 47. Pāpini (IV. 4.31) derives the words ‘kusidika’ and ’ kusidikin.’ It is noteworthy that Pāṇini does not derive or mention the word vārdhuṣika, which is employed by oven Ap. Dh. S, and Baud. Dh. S. and which is derived by Katyāyana ( the grammarian) in Vārtika 3 on Pāṇini IV. 4. 30, in which Papini refers to such words as ‘dvaiguṇika’ or ’traiguṇika’which were applied to people that carried on the condemned methods of money-lending viz. extorting twofold or threefold of the money lent ( the sūtra is ‘prayacchati garhyam’). Brahmanaspati is spoken of as ‘one who recovers a debt (rṇam-ādadih) in Rg. II. 24. 13 and the Adityas as those who, themselves being the observers of rta (the universal Law of Right), collect 673 debts’ (Rg. II. 27. 4). In Rg. VIII. 32. 16 it is said that those priests who extract (and offer ) Soma juice do not indeed owo a dent (to the gods ). Divodāsa is said in Rg. VI. 61. 1 to have been the gift of Sarasvati to Vadhyrasva as a son to pay off debts ( macyutam ) 674. These passages certainly establish that in the remote ages of the

670. ETT margot: Tuffant gata sten sten FTTH rar fugura Fine WOTT Titra . T. III, 7, 9, 8, Bouhy VI. 117. 3 ( with very slight karkations). !

671. यस्कुसीयमप्रतीसं मयि येनं यमस्य पलिना परामि । इहैव समिरवदये prawa wyront o u . #. III. 3. 8. 1-2; sunfly VI. 117. 1 closely agrees.

672. मगायः कुसीबी मानो मामागमिष्यतीति बदावि तपश्यं प्रमगन्धः अस्पन्त’ fiton Oh VI. 32. i. .

673. flow APN wargar WTAJAT PTFE 17. 11. 27. 4. 674, p a pugt fra ***14 (18##. VI. 61. k.,

416

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Rgveda it was a firm belief that men were under obligations to gods and pitrs, which could be fulfilled only by worship (yana ) and by the birth of a son. These passages oontain the germ of the dootrine of the three religious and spiritual debts that a man owed to gods, Manes ( pitys ) and sages, which he paid off by sacrifices, by the birth of a son and by vedio study ( vide Tai. S. VL. 3.10.5, Sat. Br. 1 7.2.11 and Alt. Br. 33. 1 quoted in H, of Dh, vol. II. pp.270, 560 notes 621 and 130% and above n. 669). Gradually further universal obligations came to be added to this theory of spiritual debts. The Adiparva (120. 17-20 ) holds that men owe four debts, viz the three vedic ones and the fourth to humanity in general ( which is paid back by goodness to all) and Anuśāsana 37. 17 raises them to five (adding brahmapas and guests to the well-known three ) 675. It appears to me that this theory of spiritual debts being already in the air, the same sanctity came gradually to be transferred to one’s promises to repay monetary debts and carry out other secular engagements. The word rna had been applied both to spiritual and secular debts. It is on account of this that the son was not only desir ed for repaying the spiritual debt owed to one’s ancestors, but he was also expected to free his father (if the father could not himself repay the monetary debt ) from the liability he incurred to his creditor. Nar. IV. 5-9 puts this clearly and most emphatically: “fathers desire to have song for their own benefit thinking in their heart he will release me from liability to creditors and debtors’ (or probably ‘from high or low debts’ i. e. spiritual and earthly debts ). Three deceased ( ancestors ) must be honoured (by a man) and he must subsist on three ( descendants) that come after him. These ( the first three ) series of ancestors rely (for repayment) of their twofold debts ( spiritual and secular) on the fourth in descent. If a man fails to pay on demand a debt or promised gift, that sum (by the addition of interest) goes on growing till it amounts to a hundred crores and when a hundred orores are reached he is born again and again in the house of his creditor as a slave in order to repay the debt (by his labour). If an ascetio or a brābmapa perpetually keeping the sacred fire ( agnihotrin) dieg

. 675. delen met apparuit apparatigre i Page offragtigt for at wofa: el … soft The garanti re il moment

Fra i un 120. 17-20; por

mar front a T.1 Rippertama figporrafadrat IN 37. 1%.

Results of not paying debts

417

without discharging his debts, the whole merit due to his austerities and the perpetual tending of fire belongs to his creditors”. 676 Kat. (551, 591 ) expresses the same idea but adds that a debtor who has not repaid money borrowed may be born as a slave, & servant, a woman or a beast in the house of his creditor. It was this belief that led to the doctrine of the pious obligation of the son to pay off his father’s debts even if he received no property from the father, 677

Nārada IV. 98 defines “kusida’ in a rather obscure verse as ’the receiving of money paid in consequence of the original ( amount advanced) and the profit ( agreed to be paid ) thereon and those are called kusidin who maintain themselves by this occupation’. Bphaspati ( S. B. E. 33 p. 320 verse 2) derives 678 kusida as ’that is called kusida, which is taken fourfold or ( even) eightfold without any qualm (by a person) from a wretched man who is sinking ( or distressed)’. Nār. IV. 110 defines vārdhuṣa as the interest (in kind) on grain, 678a but Ap. Dh. S. I. 6. 18. 22 and Baud. Dh. S. employ the word

vārdhuṣika’ and Ap. Dh. S. I. 9. 27. 10 has a verse in which the word urddhi occurs. Vas. (II. 41-42=Baud. Dh. 8. 1.5.93-94) quotes

676. Tutwater 39 forwaySHA: I Cercysył17trat: 1919 तुर्षक तपस्वी चामिहोत्रीमणवान प्रियते यदि । तपश्चैवाग्निहोत्रं च सर्व तबनिना WTF! ATTĘ IV, 6 and 9 ; ragport caritalautamuigor

a *** स्मादिच्छन्ति पितरः सुतान् ॥ उदारादिकमावाय स्वामिने न ददाति यः। स तस्य दासो भरपः fagurra T I FRUT. 551, 591, quoted by Sm. C. pp 168 and 161, Ti. HT III. pp. 261 and 263, 17. 4. p. 277. Dr. Jolly’s translation of Nār. IV. 6 (S. B. E. 33. p. 43) ’three must be reverenced before the rest’ does not seem to be correct. What Nār. meaas is that a man has to offer worship in śrāddha to three ancestors while he himself depends upon (upajivyāstrayah) his three descendants for the piṇda (they offer). Upajivya does not mean ’to be reverenced’ but ’to be subsisted on’. The Sm. C. II. p. 161 notes that the verse ’tapasvi &c.’ (Nār. IV.9) occurs in a Purāṇa.

677. FUIMOTHYTTAT HOTFACRI Shterafa si T: grupa H TTŲ IV. 98: The e. f. explains : FUTTATURA तस्मिसात्येष लाभो निस्तदर्थ वाममहणम् ।, ‘देयध्यं दीयत इति दान इति व्युत्पतेः TRY ROTATRON fargen p. 2.

678. फुसितारसीदतव मिशिही प्रगते । बर्षणं चामुणं कुसीदासयमतः ATT TRO q. by #. #. p. 167, HET.

679. fra NTT para sa T ORROE IV110.

59

48

History of Dharimadastra

(Vokie

two verses :’ a vārdhusika (asurer) is one who taking cheap grain lends it on condition of receiving a quantity of grain of high price and is condemned among the brahmavādins ( students of the veda). Brahmaṇa murder and usury were weighed in a balance; the murderer of a brābmana rose to the top while the usurer trombled’. Here usury of the type of the one described in Vas. II. 41 (and not all lending of money at interest) is condemned as a great sin, Gaut. XII. 26, Vas. II. 50, Kaut. III. 11, Manu VIII. 140-141 and others declare it righteous (dharmyā) moneylending when an 80th part is stipulated as the interest per month. 679

Megasthenes (fragment XXVII B p.72) states: ’ The Indiang neither put out money at usury nor know how to borrow;’ but he is under soine misapprehension, for he again says (p. 73 ) ‘one who is unable to recover a loan or deposit has no remedy at law. All the creditor can do is to blame himself for trusting a rogue’.

Nār. IV. 1. states that the principal topics under the title of rṇādāna are seven: what debts must be paid and what not; by whom, where and in what manner ( they are to be paid ); and the rules about advancing the loan and receiving it back. The first five of these relate to the debtor and the last two to the creditor. Bphaspati (S. B. E. 33 p. 320 v. 4) says that interest (výddhi) is described to be of four kinds by some, of five kinds by others and of six kinds by still others. Nār, (IV. 102-104) names four kinds and defines them, viz. kārita (interest that is stipulated by the debtor himself ), kālikā (interest accruing and payable every month), kāyikā (interest of a pana or quarter pana to be paid every day without the principal being liable to be reduced, whatever interest may have been recovered), rakravrddhi ( interest on interest called compound interest). Manu VIII. 153 mentions these four and commentators thereon give varying interpretations. Bșhaspati (S. B. E, 33 p. 321 verse 6 ) and Vyāsa ( g, by Sm. C. II. p. 154) define kūyikā as interest received from the body i. e. milk received from a cow pledged or the work put in by a slave or by a bull pledged. Br. (S. B. E. vol. 33 p. 321 verses 7-8)

679. siquier tref Fata: ouh Taut ATTIT ET have III. 11.

a

XII. 26; Arrapat

In

Diferent varieties of interest

419

adds two more varieties viz. dikhavṛddhi 680 (hair-like interest i. e. interest payable every day and so growing every day, just as the top-knot on one’s head grows every day ) and bhogalabha (profit by enjoyment i. e, making use of a house or taking the produce of a field in lieu of Interest in the case of a mortgage ), Gaut. (XII. 31-32 ) mentions the six, but instead of bhogalābha he uses the word ’ adhibhoga’, which is defined by Kat. (501) as a transaction in which the completo enjoyment of the thing pledged or mortgaged is to be the interest. Kat. (498-500) defines karita, sikhavrddhi and bhogalabha.

Br. (S. B. E 33 D. 319 yerse 1) stateg 681 that the creditor should always advance a loan after taking an adequate pledge or a deposit (with a mutual friend) or a reliable surety and after committing the transaction to writing or making the loan in the presence of witnesses. The interest may be either stipu lated (krta) at the time of the loan or not stipulated (alerta), as indicated in Viṣṇu VI. 4. Yaj. II. 38 and Viṣṇu Dh. S. VI. 3 state the general rule that debtors of all castes may pay to creditors of all castes the interest settled by mutual agreement and the rate of interest stipulated may be with reference to an

680. वृद्धिश्चतुर्विधा पोक्ता पाधान्यैः प्रकीसिसा । षइविधास्मिन् समाख्याता तब सस्ता नियोधत ह. q. by मतिच, II. p. 154, न्या. नि. p. 224 (reads षडविधान्या), कायिका कर्मसंयुक्ता मासमाया तुकालिका। पद्धिश्चक्रतुद्धिःकारिता प्रणिना कृता प्रत्यहं गृह्यते या तु शिखावृद्धिस्तु सा स्वता । गुहात्तोषः (स्तोम: v.1 ) शदः क्षेत्राद्धोगलाभ: प्रकीर्तितः ॥ वृह १. by अपरार्क p. 642, स्मृतिच. II. p. 154, परा मा. III. pp. 220-221: ज्यष. नि. p. 225 ascribes these to भारद शिखेष वर्धते नित्यं शिर दाभिवर्तते । मूले दसे सथैवैषा शिखाइदिस्ततः स्मृता ॥ कारया. in हरदत्त on गौ. XII. 32 and स.वि. p. 233 : आधिभोगवशेषो यो पद्रिस्त परिकल्पितः । प्रयोगो या चर्ष स्थावा. धिभोगः स उच्यते ॥ कात्या. प. by स्मृतिच. II. p. 154, वि. र. p. 12, वि. चि. p.+.

681. परिपूर्ण गहीत्वाधि पन्ध वा साधुलमकम् । लेख्यारुढं साक्षिमठा प्रणं दचादनी सदा ॥ ह. १. by रसुतिच. II. 135, परा. मा. III. p. 220: ‘परिपूर्ण सवृद्धिकमलदग्य पक्षिमित्यर्थः । स्मृतिच. II. p. 135. The wordsadhi and bandha are treated as synonyms by the Amarakosa and by Br. (S.B. E. vol. 33 p. 323 verse 17 ) himself. The difference made by some between the two is this: adhi is a pledge or mortgage of a chattel or immovable property to the creditor himself (with possession or without), wbile bandha consists in placing in tho bands of a mutual friend a thiag helonging to the debtor in order to inspire confidence (in the creditor). ‘विवक्षित बम्बसदस्पार्थमाह मारवा निक्षेपो मित्रहरतस्यो अन्धो विश्वासका स्मृतः ॥ इति । ’ नारद q. by य. प. p. 224. The क्य. म. (p. 166) definos bandha as an undertaking by the debtor that he would not alienate by sale, gift or mortgage the house, land or other property of his until the debt due to the creditor is paid off. This is clearly an hypothecation without possession;पायत्तापकमनशोपपते वापदेवमेवादानषिक्रयाधिकरणानकारिम्पा. मीति निर्बन्धी विधासमिनस्तारणे निक्षेपो पाप हत्यर्थः । मदभरत्न (पत्र. ms):

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article pledged or with reference to & surety given or with reference to a debt totally unsecured. Though this was the general rule, Manu VIII. 153 and Bṛ. condemn taking even agreed interest if it exceeds the rates (to be specified below ) 682 allowed by the smrtis or taking the agreed heavy interest for more than a year or taking compound interest or more than double the principal or the capitalization of interest. The smrtis lay down Various rates of interest from different points of view. Gaut. XII. 26, Yaj. II. 37, Baud. Dh. S. I. 5. 90-91, Manu VIII, 140 (=Nār. IV. 99), Bṛ. (8. B. E. vol. 33 p. 320 v.3), Vṛddha-Hārita VII. 235 and others state the rule first laid down by Vagiṣtha that it is just and proper to take every month oth part of the principal lent, so that the principal is doubled in six years and eight months,683 and Vrddha-Harita adds

682. #11 og TTT TT Thai praro quenter yg menaip quoted by ff. p. 6 which says fuer o द्विग्रहणं ववचा सह मूलमेकीकुरय मूलस्वेनेव सग्रहणं एतस्त्रयं निन्दितमिति गृहस्थरस्ना.

Ts. Vide p. 445 of .t. This verse occurs in fa. . p. 14 which says that such actions are condemned, but if a Shylock insists on his agreement he cap and does recover compound interest and so on: ‘arritararat, maior

a ma istri aw pa TTT dal dniu I. This shows that the ancient sages were quite alive to the hardships of debtors and the evils of usurious interest. They condemned usury as a greater sin than even the murder of a learned brāhmaṇa. Vide Baud. Dh. S. I. 5. 93 and Vas. II, 40-42 quoted above on pp. 417-418. " 683. &#larraf i : ANG T IT. XII. 26 ; PATUTET femei gi UAVH TURI UTAX II. 50; 54: S eguire una terra er Argent faire 1.4. I. 5. 90-91 ; grieflrat ATR tayo : TAH

H

a ar fare un aparat Valeh ettie g. by T. E. P. 447, which explains : GMAT TETTU: Prof F oratura. Should we not read

# : in the quotation from Hārīta? Gaut. and Vas, provide that five māṣas were the interest on 20 panas per month and if we are to suppose that they accepted the rule tbat 1/80 of the pria cipal sum was the proper rate of interest (as ascribed to Vasistha by Manu VIII. 140, Nār. IV. 99 and others), then the paña, acc. to those two, must be equal to 20 māṣas (i. e. 100 raktikās); wbile acc. to Baud, the pana would be equal to 16 māsas. When Hārita says that 8 panas are the monthly interest on 25 purāṇas (which were silver coins and each of which weighed 32 raktikās) and that in 4 years and 2 months the interest on 25 purāṇas at 8 panas per month came to be as much as the principal, it follows that & raktikā of silver was 40 times as valuable as a raktikā of copper (8 x 80 x 50 - 32000 divided by 800). But this does not agree with what Sukra states (aoto 162 above). Probably the relative values of gold, silver and copper varied from age to age, according to the supply of some or all of these metalo frota foroiga countries.

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that double the interest stated above may be taken when there is nothing pledged to secure the debt. Yāj. and Vyāsa provide that this rate is the proper one when some thing is pledged or mortgaged by way of security. Yāj. II. 37, Manu VII. 14% (*Nār. IV. 100), Viṣṇu Dh. S. VI. 2 provide an option that two, three, four or five per cent per month may be charged as inte rest in the order of the varṇas 684 (i, e. 2 per cent per month for a brāhmaṇa debtor and so on). Yaj. II. 37 allows these rates only if there is nothing pledged by way of security. Vyāga 685 (in Par. M. III. p. 221) provided that the monthly rate of inte rest was ofth of the principal lent when a pledge or mortgage was given as against the loan, oth when only a surety was offered and two per cent per month when money was lent on personal security. The Anusaganaparva 117.20 condemns to Hell those who take exorbitant interest. Kaut. prescribed ( as stated in n. 688 ) fines for taking heavier interest than that allowed by him. Kat. (498) provides that if a debtor himself stipulates a higher rate of interest than is allowed by the śāstra in times of difficulty (in order to induce the creditor to part with his money ) that stipulated interest must be paid but a rate of interest imposed by the creditor otherwise ( by force &c.) should not be enforced by the Court. 686 It is probable that these rates are specified because of the economic conditions of those times which proved too much even for the ancient sages or different mercantile usages about interest prevailed in different countries at different times, as expressly stated by Nār. IV. 105-106 that 687 these high rates (including eight per cent per month ) had to be paid according to the law merchant in different countries. Manu VIII. 141 ( =Nār. IV. 100 ) holds that to take two per cent per month (on unsecured debts ) is not improper. In medieval times also the rate of interest was rather high e. g. interest at 25 per cent is said to have been

684. FAKU ON . II, 39 quotes a sūtra of Br. for raising the rate of interest according to the varṇa of the debtor (पादोपचयाक्रमेणेतरेषाम).

685, 973 717 winfra: pret am: HOT faren fra Er EN: 1 491 q. in 27. #T. III. p. 221, 19.4. p. 227.

686. मणिकेम या वृद्धिरधिका संप्रकल्पिता । आपत्कालकता नित्यं दातम्या

AT HTI suur CHT TE TOT UT I UT. 498 q by me. II. 154, Sanat OD . VIII. 153. f. 6. p. 10. The it. r. explains: Rio

स्वकार्यतया भाशीतभागरिकशतारिकपाडितोधिका विस्थापिता साकारिता सस प्रम देथा, अन्यथा तेनापवस्थापिता बलेन स्वीकारितापि मदेवा। . 687. uriturq urutaurasti tot largot annat wordt va gora Fangwefan has * WITT IV, 105-106.

कारिता

TOn HD.कादिवान स्वीकारितामपि तथा$22

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charged on a deposit of six gadyaras kept with the mahajanas of Śivapura ( vide Yewur Ing. in E. I. XII. p. 273). Yaj. II. 38 provides that those debtors who carry on trade by traversing dense forests and those who are sea-faring traders should respectively pay 10 per cent and 20 per cent per month and tbe Mit. adds that these exorbitant rates are allowed because of the great danger of the logs of even the principal as the debtors may perish by ship-wreck or from the attacks of robbers and wild beasts. Manu VIII. 157 leaves the rate of interest in the case of seafaring merchants to those who are clover in these matters and who know the proper time and place. Kaut. (III. 11 ) states 688 that the prescribed (dharmya) rate of interest is 14 paṇu per cent per month, but in transactions (or in commercial usage ) it is five panas per cent per month ( as the highest, it appears ), that those who traverse forests and those who carry on maritime trade should pay respectively ten and twenty per cent per month, that those who exceed or induce creditors to exceed these rates should be punished with the first amercement, that each of the witnesses to such usurious transact ions should be punished with half of the above fine.

Other ruleg laid down in the smrtis relate to the maximum that can be recovered by a creditor from a debtor at one time. All are agreed that the creditor cannot recover at one time from the debtor for principal and interest more than double of the money lont. Vide Kaug. (III. 11), Manu VIII. 151, Gaut. XII. 28, Yāj. II. 39, Viṣṇu Dh. VI. 11, Nār. IV, 107, Kāt. (509). This is called the rule of draigunya 689 in the smrtis and of dāndupat in modern times. It will be explained in detall a little below. As regards the interest in kind on articles lent there is some difference of opinion, which need not be gone into in great detail. Manu VIII, 151 and Gaut. XII. 33 state that on loans of grain, fruits, wool and beasts of burden, and products like ghee and milk had from cattle the total recoverable cannot exceed in any case five times of what is lent. Yaj. II. 39 states

688. Are o viot H YRT: QUATT TETTE BOITETICA oroon फास्तारकामाम् । विशतिपणा साहाणाम् । ततः परं कर्तः कारयितुम पूर्वः साहसदः ।

Torre o areni udmæ III. 11.

689. Arrrrn igord . XII. 28; ferro qka QUI TANTRATTI Proyv. VI. 11; fram afhet my outra are intreg III. 11;

rretgoe wreef on RE VIII. 151. There is another reading

Differential rates of interest

that in the case of cattle and female slaves wbon loaned their progeny is the profit, in the case of liquids (like oil and ghee) when loaned the maximum recoverable is eightfold and in the case of clothes and grain it is respectively four and three times. Vas. II. 44-47 says the maximum recoverable at one time in the case of grain, flowers, roots, fruits and fluids (like oil) is three-fold and eight-fold in the case of things that can be weighed. Vide Viṣṇu Dh. $. VI. 12-15. Viṣṇu VI 17 (anuktūnām dviguṇā) provides that where no special rule is laid down the maximum recoverable is to be only double of what is lent. Kāt. (570-572) states 690 that the maximum recoverable in the case of precious stones, pearls, corals, gold, silver, fruits, silk, wool is double of what is loaned; of oils, liquors, ghee, raw-sugar and salt and land eight-fold, of baser metals five-fold. Vide Bf. (S. B. E. vol. 33 p. 322 verses 13-16 ) and V. Nirnaya p. 229 ( quoting Bharadvāja) for similar provisions.

The rule of what is called dāmdupu in modern times express od laconically by Manu VUL 151 and Gaut. XII. 28 is this that ’the amount of principal and interest recoverable at one time in a lump sum cannot be more than double of the money lent’. As a debt was recoverable not only from a man himself but also from his three descendants and as therefore there was practi cally no period of limitation for bringing a suit for money lent, creditors had great temptations to allow interest to go on increasing. Therefore the sages who condemned the profession of usury and particularly waiting long for the increase of interest 691 laid down that whatever the length of time during which the principal was at interest and whatever the rate of interest might have been, the creditor could recover by suit in a lump sum only double of the money lent. This acted as a great

690. ATEIT temat groter i Para fum gert marfa पालामा बसी मद्यामामय सर्पियाम् । द्धिराणा शेपा गुरस्य लवणस्पर्य quru fard reguTT ANTI RAT. 4. in Fifa. pp. 228-230. f. 6. pp. 17, 19 (Arst two), 10. #. P. 170. The ñ. . p. 17 accounts for this divergence as follows : ’ TERAMO a arepagh fregatir TFERIE FOTOMETER नवमाधमपणत्तमपणत्याम्पस्था महाईसमानाधान्यके कालदेशभेवेन

meri. 691.

reftat hori garer , wierer गाए । अधर्मस्त कलामणमात्र एष शिपथविकल्यासामिति निन्दनार । विस्थापने frantitoni

F P , 2.

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cheok on the creditors’ rapaoity. Several propositions are laid down in the Mit., 69 the Vyavabāramayukha and other digests that graft exceptions on the general rule, and that flow from the interpretation of Manu VIII, 151 in both readings. The first modification is that if interest is received every day, month or year and is not claimed in a lump sum at one time then the total interest received by a creditor may be even several times more than the principal lent. Br. provides (S. B. E, vol. 33 p. 321 verse 11 ) that every day interest or bodily interest and bhogalābha may be taken by the creditor ( irrespective of the question of dvaigunya) as long as the principal is not paid 6%, (2) Further, if after the interest has accumulated for some time, there is a fresh agreement with the same debtor whereby the sum lent together with interest due is taken as the principal and interest is agreed to be paid on the amount so arrived at, then the total recoverable after this fresh agreement may exceed double the original sum lent. Manu (VIII, 154-155 ) and Br. (8. B. E. vol. 33 p. 331 verse 60 ) allow such a fresh agreement. But if the debtor does not make a fresh agreement then the rule of dāndupat would apply. (3) If after the sum due to the creditor has become double of the principal lent, the creditor accepts another man as the debtor ( who takes the liability on himself), then the creditor may recover from the substituted debtor after the lapse of years an amount which may be more than double of the sum originally lent. (4) If the debtor pays a part of the principal or if the creditor makes a concession (called

reka’ in the Mit. on Yāj. II. 39 ) and reduces the total recover able or if the debtor receives an additional amount of money ( called ‘seku’ in the Mit.) and it is added to the original amount borrowed and a fresh agreement is made between the parties to put the whole to interest, then the rule of dāmdupat would not apply.

692. u meeting hot trueret i

RUTH e re. करणे तस्मिोका अनेकशः प्रपोगान्धरकरणे शरणादिक एण्यापतिक्रम्य पूर्ववर्धते । सहयपोगपि प्रतिदिन प्रतिमा प्रतिसंवत्सरं वाचाहरणेऽधमणे देयस्य एज्यसभा

THE Agora funt puter or farmon 97. II. 39.

693. शिक्षाkि कापिका मोपला सपेरा बनी तापसमावयापावामूलन Photy F, 4. by err. II. p. 161, 41. HT. III. p. 230, my p. 2. :

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The rule of damdupat has been acted upon by the courts in India in modern times 64. Though under the Transfer of property Act before its amendment in 1929 there was a conflict of decisions, since 1929 it is settled that the rule of damdupat does not apply to mortgages governed by the Transfer of Property Act. But the rule is so reasonable and humane that the Deccan Agriculturists’ Relief Act (XVII of 1879 ) has made (by sec. 13) the rule of dāmdupat applicable to all agriculturists as defined by the Act, whether Hindus or non-Hindus; and the Bombay Agricultural Debtors Relief Act (of 1939), sec. 42, the Madras Debt Conciliation Act (XI of 1936, sec, 16 ) do the same.

A loan has to be returned on demand if no time is fixed for repayment or on the expiry of the time ( if one has been fixed by the parties ) or when interest ceases on account of becoming equal to the principal ( Bṛ. in 8. B. E. vol. 33 p. 328 verse 47 ) Interest stops when on the debtor offering to pay the loan the creditor refuses to accept it and the debtor deposits the money in the hands of a third person (Gaut. XII. 30, Yāj. II. 44). With Yāj. II. 44 section 84 of the Transfer of Property Act (IV. of 1882 ) may be compared. Vas. II. 49 states the remarkable rule that interest stops the moment the king dies and begins to run only after the coronation of the successor. 695 Nār. II. 39

694. Vide Balkrishna v. Gopal I. L, R. 1 Bom. 73 (where it was held that the rule of dāmdupat should not be extended to apply to the amount recoverable in execution of the decree of a civil court), Nanchand v. Bapusaheb 1, L. R. 3 Bom. 131 (held that the rule of dāndupat does not apply when the defendant is a non-Hindu ), Gopal v. Gangaram I. L, R, 20 Bom. 721 F, B. (the rule is excluded from mortgages the terms of which necessitate the existence of an account between the mortgagor and the mort gagee in possession about the rents and profits ), Sundarabai v. Jayawant 1 Bom. LR, 551, 555 (rule applies between all Hindu debtors and creditors both in respect of simple as well as mortgage debts), Khimji v. Chunilal 21 Bom. L. R. 419 (by agreement interest which does not exceed the principal may be capitalized ). It is interesting to find that in ancient Egypt the legal maximum rate of interest was thirty per cent and it was forbidden to allow interest to increase beyond the double of the principal. Vide Wilkinson’s * Maoners and Customs of the ancient Egyptians’ (First Series). 1842, vol. II p. 50. Usury was condemned in ancient Egypt, among the Jews (vide Psalm XV. 5, Ezek. XVIII. 8 and 17, Lev. XXV. 36-37) and by the ancient smrtis (as more heinous than even the murder of a brāhmaṇa, H. of Dh. vol. II. p. 124 a. 269).

695.. राजा मतभावन बायपदि विनाशयेत् । पुना राजाभिषेकेण इल्यमूलं . na #fey II. 49.

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(S. B.E. vol. 33 p. 33) provides that no interest runs on the price of commodities, on wages, on a deposit, on a fine, on what has been idly promised ( to bards and the like) and on the stake won in gambling, unless there is a special or express agreement to pay interest. 696 Kāt. ( 508 ) has a similar verse, 697 but adds hides, crops, liquor, bride-price and suretyship debts to some of those mentioned by Nar. Kaut. (III. 11) provides that no interest runs where the debtor is a person engaged in a Vedic sacrifice of long duration, or is suffering from a disease or is staying at his teacher’s house ( gurukula) for study or is a minor or is a man without any substance. As regards some cases where originally a thing is lent to a person out of friendship or because he asked a loan of it, Nar. (IV. 108) and Kat, (502-505) lay down certain rules which are quoted in the Mit. ( on Yāj. II. 38 ) and other works. Nār. (IV. 108 ) prescribes 698 that no interest ever attaches to things loaned through friendship, unless there is an express stipulation to that effect; but even in the absence of a stipulation interest starts running after the expiry of six months. Nar. IV. 109 and Kat. (505) both lay down that a loan (of money or an article) made through friend ship cannot begin to earn interest as long as no demand is made for its return. If the debtor refuses to return it after it is demanded interest begins to run at the rate of five per cent. Kāt. (502-504 ) 699 lays down three propositions about yācitaka (a temporary loan of money or of an article): (1) When a person takes such a loan and goes to another country without

696. पण्यमूल्यं भूतियासो वण्डो यचावहारकम् । वृथादानाक्षिकपणा वर्धन्ते मावि. पक्षिता॥ नारद II. 36; मिता. on या. II. 38, परा. मा. III. p. 224, प. म. p. 169 read दण्डो पश्च प्रकल्पितः वि. चि. p. 7 reads यचाभिहारिकम् (what is appropriated by fraud or force), HTETT* is translated by Jolly as ‘what is abandoned by one and found by another’ (S. B. E. 33 p. 33).

697. धर्मसत्यासत्यते पण्पमूल्ये व सर्वदा। बीबुल्केषुन पद्धिः स्थास्यातिभा म्या गतेषुवकारपा. (508) q. by मतिच. II. p. 157, परा मा. III. p. 225. वि… p. 20; दीर्घसमग्याधिरकुलोपाई पालमसारं वा नर्णमषर्धेत । को. III. 11.

____698. न वृद्धिःप्रीतिदताना स्यादनाकारिता कचित् । अनाकारितमप्यूर्व पत्तरार्षा हिपते ॥ नारद IV. 108, which स्मृतिच. II. p. 156 explains ‘अनाकारिता अकया। भीतिदताना प्रतिपावनप्रतिवानदिन निर्देशम्पानामिति शेषः। प्रीतिवसं तु परिकत्रित सदस्ययाचितम् । भाग्यमानमद वर्षते पञ्चकं शतम् ॥ नारद IV. 109.

699. पो पापितकमादाय तमदावा दिशं प्रजेत् । अर्व संवत्सराचस्प त द्धिमाप्टर यात् ॥ कस्वोबारमदावा यो पाचितस्त विशं ब्रजेत् । ऊ मासत्रयातस्य तदनं दिमा पात् । स्वदेशेऽपि स्थितो परतु न दयायाचितः कचिद । ततोऽकारितां पद्धिममिच्छन्तं

वापयेत् ॥ काल्या. (502-504) q.by मिता. on पा. II. 38, वि. T. PP. 15-16, स्पविष.II.p. 156.

Interest when allowed without stipulation

returning it, that loan begins to acquire interest after a year from the date of the loan ( though no demand be made ); (2) if a person after taking a loan goes to another 700 country without returning it even when pressed by the lender to return it that loan begins to acquire interest three months (after demand); (3) when the borrower of a thing does not return it even though he is pressed to return it, the king should make him pay interest from that day (i. e. day of demand ), though it was not agreed upon, though he remained in the country and though he be unwilling to pay interest. The Madanaratna says that in these cases where no interest is settled beforehand and where the texts do not specify the rate (as Kāt. 505-506 do viz. what is lent through friendship, a deposit, balance of interest, unpaid purchase money, if not returned on demand, begin to carry interest at five per cent per month ), the rate of interest would be the one stated by Yāj. II. 37 (viz. 1/80th per month ) and Viṣṇu VI. 4. (akstāmapi vatsarātikramena yathāvihitam ),

Adhi701 means pledge of a movable or mortgage of im movable property. Nār. IV. 117 remarks 702 that in lending money an ādhi and surety are the two sources that inspire con fidence (in the creditor that his money will be safe ) and a document and witnesses are the two modes of proof that will establish (the existence of a debt). An ādhi is so called because the creditor is authorised to wield power over it or it is placed within his power (Nār. IV. 124 and Mit. on Yāj. II. 58)703. The

700. Compare Viṣṇu Dh. S. VI. 4 with the first proposition. Pāṇini ( IV.,4. 21 ) derives yācitaka (in the sense ‘yacitena nirvșttam’). In Saundanappa v. Shivbasawa 31 Bom. 354 Mr. Justice Chandavarkar translates (at p. 361 ) Nār. IV. 108 and Kāt. (502-504 ), discusses the explanations of those passages by the Mit. on Yāj. II. 38 and holds that these incidents are even now applicable to contracts of debts by Hindu debtors and that neither the Interest Act (XXXII of 1839) nor the ladian Contract Act affects the ancient Hindu Law. It should be noted that 31 Mad. 250 aad 53 Mad. 549 at p. 579 dissent from this view.

701. For an illuminating discussion on pledges, vide Dr. Sen’s ‘Hindu Jurisprudence’ chap. VI. pp. 176-206.

702. fragma

Porn Freerover garot Topic U HROE IV. 117. 703. भाषिनाम ग्रहीतस्य यस्योपरि विश्वासार्धमधमणेमोलमोंऽपिक्रियते भाषी ra quTC

H

u a rangi-ta far, on . II. 58.

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word adhi occurs in Ap. Dh. 8. I. 6. 18. 20704 (which includes among those who are unfit to be invited at a śrāddha ‘one who subsists on adhi’). Gaut. XII. 29 also refers to adhi, Kaut. (IIL. 12 ) briefly deals with ādhi and after stating some rules extends the principles of upanidhi (deposit) and debt to it. Manu VIII. 165 employs the word ‘adhamana’ in the sense of’ mortgage’. According to Br. 705 (S. B. E. vol. 33 p. 323 verse 17 ) an ādhi is of four kinds viz. of movable property, of immovable property, gopya (to be kept in custody of the pledgee only ), bhogya (to be enjoyed). Nār. IV, 124 first divides adbi into two sorts, viz. one that is to be redeemed within a certain time fixed (by agreement at the time of contracting the debt) or to be retained till the debt is paid off and Nār. IV. 125 again subdivides each of these two into gopya and bhogya. This latter division was known to Gaut. XII. 32 Manu VIII. 143, Yāj. II. 59, Kāt. (576). The subdivisions of adhi are made from several points of view viz. the nature of the property, the form of the pledge, the men tion or non-mention of a period and the evidence to establish it. The Mit. on Yaj. II. 58 explains 706 that the first kind of adhi mentioned in Nār. IV. 124 contains the conditions that the money will be repaid at a fixed time and that if the money be not so paid at the time fixed the thing pledged or mortgaged will belong to the creditor. Yāj. ‘II. 58 sets out three provisions viz. (1) when a time is fixed for payment, the thing pledged or mortgaged is lost to the debtor if the time fixed is allowed to pass without there being any repayment ( whether it be an adhi that is to be merely kept or whether it is one to be enjoyed); (2) but if no time be fixed the thing given as security is not lost

704. # Wars tita i forreste iarra: 1 3959. 4. &. I. 6.18. 19-22. Er explains 37 here’as rent of a house,’ because the occurs A little later. But that sease is very rare and besides hardly any smrtikāra has condemned the letting out of one’s house for rent. It is better to take ādhi as pledge or mortgage and hold that vārdhușika refers only to those who lend corn in order to take 13 times as much (or more) after the rainy season as defined by Nār. IV. 110 quoted above (on p. 417).

705. Su qru: FATTA: ## spennartut:

1 A: par out forma PQ # YV. q. by u. fo. p. 233, 1.. p. 171 ; suriye oru: विज्ञेपो दिलक्षणः । कतकालोपनेयश यावदोयोद्यतस्तथा । स पुमद्विविधा मोक्को गोप्यो

TURUT T1415€ IV, 124–25.

706. FE TUTTE Tarife Parapatrierat hartanungis out तवैवाधिर्भविष्यतीति । एवं निरूपिते काले उपमेया आत्मसमीपं नेतप्पो मोपनीय इत्यर्थः । देयं दान देयममतिक्रम्य थावदेयमुपतो निपता स्थापितः इत्प: । यावदेपसंपतो

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TII )

Rules about pledges

429

to the debtor at all, when it is an adhi that is to be enjoyed; (3) if no time is fixed and the adhi is only to be kept (gopya) then it is lost to the debtor only if it is not redeemed even when the debt has grown to double of the principal by non-payment of the interest agreed upon. There is a period of fourteen days’ grace after this, as stated by Bṛ. (8. B. E.707 vol. 33 p. 324, verses 27-28) that when the principal has been doubled or the stipulated period in the case of a pledge delivered for a certain time only has expired, the creditor becomes the owner of the pledge, after waiting for a fortnight during which the debtor may repay the debt and redeem his property. Gaut. XII. 29, Manu VIII. 143, Yāj. II. 58, Viṣṇu Dh. S. VI. 5 provide that an adhi which is mortgaged with the condition that the fruit or profits are to be enjoyed bears no interest nor can the creditor, even after keeping such an ādhi for a long time, make a gift of it or sell it. Medhātithi on Manu VII. 143 holds that a mort gagee with possession who is to enjoy the produce cannot, by virtue of the last quarter of Manu VIII. 143, make a sub-mortgage (called anvādhi). Kullūka on 708 the other hand says that it is common practice in all countries for a mortgagee to execute a sub-mortgage of land and the like and that Manu VIII. 143 does not forbid it. Prajāpati 709 (q. by Par. M. III. p. 242) defines a deed of sub-mortgage: ‘if the creditor pledges to another the thing already pledged to him for the same amount (for which it was pledged to him ) he should pass a fresh deed of pledge (or mortgage ) and should hand over the former deed to his own creditor.’ It appears that sub-mortgages came to be recognized rather late. Bharadvaja states that if a sub-mortgage be effected without the mortgagor’s consent, the mortgagee would lose his money.

707. हिरण्ये विगुणीभूते पूर्णेकाले रुतापो बन्धकस्य धमी स्थानी दिसता प्रतीक्ष्य Timer u are oft HaCKIE . q. by THUT. ON Tf. II. 38. Compare the description of mortgage by conditional sale ia sec, 58 (c) of the Transfer of Property Act (of 1882).

708. HA TE Tisourir TTHIEU i onim AUTO OD RY. VIII.“143 ; Humanitat q urfurteresse HR PARIT नागपत्र बन्धकमार्पणमिति पाचमाते । अत्र तु सर्वदेशीपशिधाचारविरोधा, पम्पकाकत. paremini ATEITITI Forum on AB. VIII. 143. - 709. धनी धनेन तेनैव परमाधि भयेदि । हत्वा तदाधिलिखितं परचारय सम

& # xamda q. by plac. II, 143, 9TT. #T. III. 242, 9, #. p. 26: ‘W rum tuo afet rigtigvertuin murgi, 471. #T. III. p. 242; सानिमा पानज्ञात भाषेराषि करोति चेत् । स्वपनासहीना पाकरोत्यापदि पूर्ववत् ।

Tr in . ff. pp. 234-235.

430

[ Vol

..The general rule was that an adhi (whether of movable or immovable property ) that was bhogya carried no interest but the profits were to be taken in lieu of interest (vide Kāt. 516 ) 710 and the debtor would in this case get back his property on paying the principal. Kaut. (III. 12 ) states 711 that immovable property mortgaged may be such that it can be enjoyed only by expending labour over it or without expending one’s own labour the creditor may enjoy the fruits or income thereof. But as noted by Vyāga and Bharadvāja 712 the stipulation about a bhogya ādhi may be that the income from the property is to be taken as in payment of the whole interest and part of the principal. This latter is called sapratyaya-bhogyadhi and the other variety where the income is taken in lieu of interest only is called apratyaya-bhogyādhi. The Mit, on Yāj. II. 64 after citing a text of Bphaspati refers to these two varieties (though it does not use these terms) and adds that if the income is not sufficient to meet the interest wholly then the debtor may have to pay the principal and the unpaid part of the debt before redeem ing his property. The Mit. (on Yaj. II. 64 ) states that the appropriate name ‘kṣayādhi’ is given by the people to what is called (above) as sapratyaya-bhogyādhi. Bharadvāja states that on taking an account ( where there is an agreement to apply the income towards interest and reduction of the principal) if the creditor has been overpaid he is to restore the overpaid amount to the debtor and that if a portion of the principal remains unpaid the debtor has to repay it.

If a man first mortgaged his property and then sold it, the purchaser took it subject to the rights of the mortgagee (Vasistha quoted by Sm. C. II. p. 145). If a person executed a mortgage, a sale and a gift of the same thing on the same day, then the

::.610. अभय पीत्वा च भोगयोग्यं ददाति चेत् । जन स्थापरं पापि भोग्याधिः

DUHET Tea in Per ET F AIT Carterasa TETT. 316 q. by me. P. p. 242. #. fl. p. 234, which says that this is

s uwirt. 711. KORTER I TT: autres rifta III, 12… . .

712. #irat feru: Tuirantu: seguretat i porrotut : For Tiramufcget ArecuTut: #1549*t. saproteger eyguitar TIF: I TRE FATHIEU TRATOR atm ! H2H T Target T ai rotu: N: euroa नियापों भवेत् । … भव भरद्वाजः । … यतु तत्राधिक देर बाणिने पुनः ! ही यातु R

o got # 27. n. pp. 233-234 ; vide te. fr. pp. 242-243. from which s: V. appears to have borrowed. -

II

.

Conflict of several transactions

431

donee would take one-third of the thing and the mortgagee and purchaser would share the remaining two-thirds in proportion to the money paid by each 713. If a person was liable to pay several debts, some secured by a pledge or mortgage and some taken on personal security, the latter were to be paid first and redemption of the mortgage was to be ordered afterwards, according to Bharadvāja (q. by Vy. Nir. p. 245 ).

The restriction that more money should not be taken from the sub-mortgagee than what was advanced to the mortgagor was for the benefit of the latter. The Par, M. (III. p. 242) provides that a sub-mortgage can be made only when the amount due has risen to double the principal, but that if the owner consents a sub-mortgage may be made even before that con tingency arises.

Kāt. (522) requires that an adhi becomes valid when such particulars as the boundaries of the field or house and the village ( in which it is situated) are specified 714 Kat::(518) further provides that a writing of pledge or sale or gift is superior to a similar transaction made in the presence of witnesses only. If the same field or other thing is mortgaged or pledged to two persons separately, Viṣṇu Dh. S. V. 185 715 and Br. (S. B. E. 33 p. 326 verse 34 ) prescribe n6 that the one who got possession first (without force ) is entitled to preference. This shows that under ancient Hindu Law possession was nine points of law and that hypothecation without delivery of possession was known to Kāt. and other smrti writers, even if earlier smrtis did not recognise an hypothecation without possession. Yāj. II. 60 and Nār. IV, 139 emphatically assert that a pledge or mortgage becomes perfect or effective only if there

713. TAUTT RAFITTI : managira: FURR TEI TETETht aanvaarv I TRAP FEU a Grenraa अपोपि तदनं ध विभजेयुयथाशवः । उभौ क्रियाहसारेण विभागेन प्रतिग्रहः ॥ इति । वसिष्ठ 9. by free. II. p. 145, *. f. p. 238-239; Bṛ quoted by both has similar verses,

714. मर्यादाविहित क्षेत्र गुह वापि यदा भवेत् । ग्रामावयश्च लिख्यते तदा सिद्धिमा TESSUTO IEFTETT. G. by #. f. p. 236. Compare sections 21 and 22 of the Indian Rogistration Act.

715. THE murat firwaat en *** * f*: Tea rent ANT FAIT # fergu V. 185, 1. AT. HII. 233 reads i formen.

::716. He retter Fi l ter health an APNEATS

PEITE. g. by TT. T. III. p. 233, Farar. II. p. 144; vide a similar verac of The quoted in. . . . 173… .. .432

( Vol.

is enjoyment and not otherwise. This is to be taken along with Yaj. IL 23 and so the first in time shall prevail only if the first is accompanied with possession. If a sale or mortgage be made before witnesses to one man and in writing to another, the latter prevails over the former 717. If a debtor were to pledge or mortgage the same thing to another after pledging it to one and without redeeming the first debt, Viṣṇu Dh. 8. (V. 181-182) prescribed 718 the drastic measure of corporal punishment (whipping or imprisonment) if the land mortgaged was a gocurma or more in extent or a fine of 16 suvarṇas if it was less. Kat. (517) in similar circumstances made the debtor liable to the fine imposed on a thief. Kat. (519-521 q. in Sm. C. II. pp. 144 145 and V. P. pp. 240-241 ) states that in a competition between a document of pledge which does not give particulars of the thing pledged or which refers to a thing not existing at the time and a document in which the thing pledged is described with partioulars or in which the thing existed at the time the deed was executed, the latter is entitled to preference; similarly the pledge of a thing specifically described is superior to a prior pledge of all the debtor’s property mentioned in general terms.

If an adhi deteriorates 719 in value (i. e, becomes inadequate to meet principal and interest) or if it be lost or destroyed though proper care be taken thereof by the creditor, then the debtor must either pledge another adequate thing (in substitu tion) or the debtor should return the amount due (Yaj. II. 60, Kat. 524). The Mit. on Yāj. II. 60 remarks that it follows from this that it is the duty of the pledgee to take proper care of the thing pledged. Br. ( S. B. E. 33 p. 323 verse 19 ) expressly says

717, आधानं विक्रयो वानं लेख्यसाक्ष्यकृतं यदा । एकक्रियाविरुद्ध तुलेख्यं तत्राप Ter 4. (518) q. by TT. #T. III. 235, F . II. p. 144, #. f. p. 237. Compare Kat. 518 with sec. 48 of the Registration Act which provides that a document relating to movable or immovable property shall prevail over an oral agreement or declaration unless the latter is accompanied or followed

by delivery of possession.

718. गोचर्ममात्राधिका भुषमभ्यस्याधीकता तस्मादनिर्मोच्याझ्यस्य यः प्रयच्छत्स na: 1 at a Ter ra i forsk. V. 181-182. runtis variously defined: सनहस्तेन वन शिक्षा निवर्तमम् । दश तान्येव गोचर्म दवा स्वर्ग महीयते ॥ हस्पति

a 8 q. by PAMI. ON T. I. 210 and worra p. 367; Foy. V. 183 satare qenet C

HRITT ATT luft Fatet : Vide also a XII, 49, p. 539, 39 p. 1225 for other definitions.

719. आधीकत ह परिकचिदिनई देवराजतः । तत्रणे सोद दाप्यो धनिमानधमणिका नवनिकदोषेण निपतहा ब्रियेत पा । आधिमन्य स वाप्यः स्पारणामुच्येत नर्णिकः। HTETT 523, 524 q. by p re II. pp. 137, 138, R. T. p. 26-27, , ,

HI 1

Care required of a pledgee

433

that the pledge has to be kept carefully like a deposit, as other wise interest is forfeited in case of its being damaged. If a pledge which is to be kept only is enjoyed by the creditor, then the interest stops and if it deteriorates or is lost the creditor has to restore it to its former condition or substitute another of equal value; if a pledge to be enjoyed is lost or deteriorates by use then also the interest stops; and the creditor has to restore it, otherwise he will lose his principal (Yāj. II. 59 and the Mit. thereon, Nār. IV. 125, 127). If a pledge is lost without any fault or negligence of the creditor, but through fate (i. e. accidents like fire or flood) or the action of the king, the debtor has to furnish another pledge or to pay the amount due(Kāt. 523, Nār. IV.126, 130, Yaj. II.-59, Vispu Dh. S. VI. 6, Gaut. XII. 39, Br., S. B. E. 33 p. 323 verse 21). From the time of Gautama 720 (about 500 B. C.) onwards the rule about the care required of a pledgee, bailee, depositee was the same viz. that he is to take of another’s property kept with him as much care as he would take of his own. Nār. (niksepa 14) and Yāj. II. 67 lay down the same rule for all kinds of bailments. Manu VIII. 189 ( =Nār., nikṣepa, Verse 12) illustrates what is meant by accidental loss.

The debtor cannot redeem the pledge or mortgage before the time fixed by mutual agreement, but by mutual agreement he can redeem even before (Bṛ. S. B. E. P. 325 verses 32-33). If the creditor does not allow redemption when the debtor has a right to redeem and is ready to do so, the creditor may be liable to be fined as a thief (Yāj. II. 62). Acc. to Kaut. (III, 12) the fine is 12 panas721.

It has already been stated above (p.429) that in certain cases (i.e. when it is a gopya ādhi) the ownership is lost to the mortgagor (i. e, in the language of modern law there is a foreclosure), if the amount has risen to double of the money lent without payment (even after the period of grace) or if the period fixed has passed away without there being repayment (whether the

I . xir

AT: *

TEM

720. fargarfirarua #21: Fufafan carrycota I . XII. 39,00 which free says: youtarr urę uroferant: un T , To मिभयादी स्वयं गृहीत्वा निभ्याधुपेक्षेरन स्वयं वा गुप्त निधाय बहिनिध्यादि स्थापयेयुः । एतस्मिन्पुरुषापराधे सति दयुरेव ।। देवराजोपयातेन यदि तमाशमामुयात् । ग्रहीतवण्यसहित

• arar fauna T.g. by Far. II. p. 179, 54, A. p. 192; ersten निक्षिप्तं यत्र नाशितम् । ग्रहीतः सह भाण्डेन वातुर्म तदुच्यते। कास्या. q. by स्मृतिच. II. p. 179. Compare sections 151 and 152 of the Indian Contract Act, where the same propositions about the care to be taken by the bailee are laid dowa.

721. puntofumwa nuit : 1 BÜṢTIU III. 12.

55

434

[Vol.

amount has risen to double of that lent or not, aoo. to Mit. on Yaj. II.58). But if at the time of contracting the debt the stipulation is to repay the sum lent with interest and there is no stipulation about loss of the ownership of the thing mortgaged (1. e. it is like a simple mortgage of modern times), then there is no loss of ownership. There is then only a power of sale in the mortgagee, So also in the case of a bhogyādhi the mortgagor or bis heirs can redeem the property at any time by paying the principal and there is no loss of ownership to the mortgagor. According to Yaj. II. 63 and Br. 722 (S. B. E. vol. 33 p. 325 verse 29) the creditor can sell in the presence of (the debtor’s relatives) and witnesses the adhi, when the amount has grown to double of that lent or when the period fixed has passed, if the debtor has not redeemed and is absent or dead. After

meeting his own dues the creditor has, as said by Kat. 529, to hand over the balance of the sale price to the king (i, e. pro bably to the court of the locality). Kaut.723 (III. 12) provides that if the debtor is present and the creditor is afraid of the loss of his money because it may exceed the market value of the ādhi he may sell it with the permission of the judges (dharmastha) or he may demand a surety for assurance. It appears from these passages that a sale through court and a right of private sale were both recognised in the case of mort gages in ancient India (as in modern times under sections 65 and 69 of the Transfer of Property Act).

There were two other special kinds of adhi described in Yaj. II. 61 viz. caritrabandhaka 724 and satyankāra. The first

722. हिरण्ये द्विगुणीभूते मृते नटेऽधमणिके । वृष्यं तदीयं संगृह्य विक्रीणीत ससाक्षि कम् ॥ ए. q. by ज्य, म. p. 174, परा. मा. III. p. 240 which remarks ‘आधीकृतं ब्राय ससाक्षिक विक्रीय मणानुरूप द्विगुणीभूतद्रग्यपर्याप्तं गृहीतं ततोऽवशिष्टं वर्जयेत् । राशे समर्पयेदित्यर्थः। विना धारणकाहापि विक्रीणीत ससाक्षिकम् । था. II. 63; धारणकाद धमाद्विना । मिसा.

723. धारणकसनिधाने या विनाशभयादुदतार्थ धर्मस्थानुज्ञातो विक्रीणीत । आधिपाल प्रत्ययो वा । अर्थशास्त्र III. 12. Acc. to the Sm. C. II. 150 adhipala was a surety in case of gopyadhi (quoting पितामह); राज्ञस्ततः स विख्यातो विक्रेय इति धारणा। सादिकं गहीवार्थ शेष राजन्यधार्पयेत् ॥ काल्या. q. by अपरार्क P. 658, परा. मा. III. p. 241, स.वि. p. 245, विवादचन्द्र p. 9; यदा तु न सकुरुयाः स्युर्न च सम्बन्धिवान्धवाः । तदा दद्याद द्विजातिभ्यस्तेष्वसत्स्वप्स निक्षिपेत् ॥ नारद IV. 113; तथा च संग्रहकारः ।… सतादिगाह्मणान्तानां रिक्थभाजामसंभवे । पलाशस्य पलाशेन जुहुयान्मध्यमेन तु । यस्कुसीद. मिति प्रास्पेवयवाप्स्येव तद्धनम् । सतिच. II. p. 177.

724. चरित्रवन्धककृतं साध्या दापयेखनम् । सत्यकारकृतं द्रष्य द्विगुणं प्रतिपाद येदवा.11.61: on सत्यकारकुत the मिता. says: सत्पस्य कारः सत्यकार-कारे सत्यागदरय इतिहम् । सत्यकारेण कृतं सत्यकारकतम्. Two meanings are given of चरित्रवन्धककृत and सत्यकारहत. ‘कारे सत्यागदस्य) is पाणिनि VI. 3. 70.

III 1

Caritrabandhaka and satyankāra

435

occurs either when the creditor being known to be very honest the debtor gives as security a property of very great value for a small debt or where a debtor being known to be very honest & property of very small value is accepted as security for a large debt. In such a case there is no forfeiture or foreclosure of the property in any case but the king (or judge ) should award only double the principal lent. Another meaning is that in a caritrabandhaka it is the merit (apūrva or puṇya) arising from bathing in the Ganges or from performance of agnihotra that is given as security (i. e. he will forfeit merit on non payment). In this case the creditor will receive double and there is no loss or forfeiture of adhi. A pledge made with satyankāra occurs when at the time of making a pledge the stipulation is ‘I am liable to pay only double but there will be no loss of the thing pledged’ or (a second meaning of) satyan kāra is that when an earnest (a ring or the like) is given at the time of a sale and the vendor breaks the promise he has to pay double of the earnest’.

If the mortgagee is dead or absent abroad, and the debtor wants to redeem he may take back the ādhi after paying the amount due to the family i. e. to his sons and other agnatic relations or to his cognates and in the absence of these (if the creditor be a brāhmaṇa) to other brāhmaṇas (and if no brāh manas be available) he may cast the money into water ( Yāj. II. 62 and Nār. IV. 112-113). The Kausika-sūtra 725 ( 46. 36-40) contains provisions about casting the debt in the cemetery or where four roads meet if the creditor is dead and there are no heirs. The Sangraha says that it may be thrown into water with a palāśa leaf to the accompaniment of Tai. S. III. 3. 4. 1-% quoted above (n. 671). Another alternative is that the debtor may have a valuation of the ādhi made at the time when he wants to redeem (and the creditor is absent), and allow it to remain with the creditor but without interest (and redeem it at the valua tion when the creditor comes or secure the price from the creditor if the ādhi be afterwards lost or destroyed, acc. to Mit. on Yāj. II. 63).

Pratibha. A pratibhū or lagnaka (Bp. quoted in n. 681 and Kāt. 530) means ‘surety’. Pratibhavya (boing a surety) was known to Gautama (XII. 38) and pratibhū was known to Panini

725. Teatro Euro s tati Treinaftilo 46. 36-40.

tra i fagna farata i

qu ir

436

(Vol.

( II. 3. 39). Suretyship requires the concurrence of three persons viz. the creditor, the borrower (called the principal debtor) and the person who agrees, for inspiring confidence in the creditor 72, to pay or indemnify if the principal debtor commits default. Manu VIII. 160 speaks of surety for appearance and for repay ment of debt. According to the purpose of the transaction a surety is of three kinds (Yāj. II. 53 =Viṣṇu Dh. S. VI. 41 and Nār. IV. 118) viz. for appearance, for payment and for honesty. The first undertakes to produce a person before a court and assures the court that the person concerned will not abscond from the country; the surety for payment agrees that in case the debtor does not pay the principal and interest, he will him self pay both; the surety for honesty assures the employer or other person with whom another man deals that the latter is an honest and good man, that he would not deceive and that re liance may be placed on him (vide Mit. on Yāj. II. 53 and Sm. C. II. p. 148 for these explanations). Br. (S. B. E. 727 vol. 33 p. 327 verses 39-40) speaks of four (including the three of Yāj. II. 53), his fourth being one who promises to deliver or restore the assets that are with the debtor (such as household furniture or ornaments). Yāj. and Nār, must be deemed to include this last under the surety for payment. Kāt. (530) 728 says that a surety (lagnaka) may be caused to be given for repayment (of a debt), for appearance (upasthāna), in lawsuits, for honesty and for taking oaths (or ordeals). Acc. to Harita a surety is taken for five purposes viz. for keeping the peace (abhaya),

726. apa ra pareri gramado E FT4: I hat. 7. II. 53, #4. X. p. 247.

. 727. 7 tara #forturo Tu I amfilt: afry: re To #fr पिभिः॥ आहेको वर्शयामीति साधुरित्यपरोजवीत् । दाताहमेतद्रविणमर्पयामीति थापरः ॥ Y. q. by spare p. 655, a. II. p. 148 and 74. 4. p. 247.

728. ratura Marafare$19977 i 997 yurit ferrau TEUT. 530 4. by 37977* p. 655, 967. #. III. 249, H. . p. 247. When a special oath or ordeal was to be taken or undergone at some future date, a surety was taken from the party. A surety was also to be taken from both parties to a litigation (Yaj. II, 10). 3740 497 ara 7qfUra somia i Tur ATEST

TOTT TE : 11 ta q. by Fiata. II, 148 and 59. 9. p. 248: FUT THE बन्धदग्यार्पणमभिमतं न दर्शनम् , तस्य स्वपदेनैवोपात्तत्वात् , पवित्यस्यापटनाचा स्मृतिच. All the above kinds of suretios are taken in modern civil and criminal pro ceedings. Vide see 145 of the Civil Pro, Code (for sureties for the perfor mance of a decretal order or repayment of money ordered by a Court to be paid, for restitution of property taken in execution), sec. 55 (4), Order 25 rule 1, Order 38 r.5, Order 41 rules 6 and 10 of the Civil Pro, Code and Cr. Pro. Code, chap. VIII, sec. 426, 499 &c. in criminal matters.

III ]

Different kinds of sureties

437

for honesty, for repayment of debt, for delivering the debtor’s property to the creditor, for appearance. V. P. P. 248 quotes Vyāsa (who mentions seven kinds of sureties) and remarks that all can ultimately be reduced to three varieties.

If the surety for appearance cannot produce the person at the time and place agreed upon, he should in that case pay to the creditor what he has bound himself to pay except where the debtor is prevented from appearing by act of God or of the king. But a period of a fortnight, a month or three fortnights at the most should be allowed to the surety to find out the absconding person 729. If he can produce him within that time the surety would be free from liability (Kāt. 531, 532, Bṛ, in S. B. E. vol. 33 p. 327 verse 42). If the surety for appearance cannot (even after time is given) produce the debtor or the debtor dies then the surety has to pay from his own pocket the money due from the debtor (Manu VIII. 158 and Kāt. 532-33). All this is subject to the proviso of the act of God or of the king.

Sureties of all kinds are personally liable to make good the loss arising from the non-appearance of the debtor, or from his dishonesty or non-payment (Yāj. II. 53, Viṣṇu VI. 41, Bp, in S, B. E. 33 p. 327 v. 41); but the sons of the surety for appea rance or honesty were not liable, if the surety died 730. Yet if the surety for appearance or honesty stood surety only after taking some security from the debtor for so doing, then even the son would be liable to reimburse from such security the person losing. The liability of sons and grandsons for the suretyship debt of the father or grandfather will be discussed a little later on. If there are several sureties, then each will have to pay a proportionate part of the debt; but if each of the sureties has undertaken the whole liability of the debtor (i. e. if the liability of all is joint and several) then the creditor may at his will recover the whole debt from any one of the several sureties

729. grados Finos que entr a : * T imuna H महः, नष्ठस्यान्वेषणार्थ तदेय पक्षत्रयं परम् । पथसौ दर्शयेत्तत्र मोक्तव्यः मतिभूर्भवेत् । काले मतीने प्रतिभूर्यदितं नैव दर्शयेत् । स तमर्थ मदाप्या स्थास्ते चैष विधिः स्मृतः॥ कारया.: both 9. by fr. II. p. 149, 14. 4. p. 249, FAAT ON Tr. II. 57.

730. आयो त वितथे दाप्यौ तस्कालावदितं धनम् । उत्तरोत पिसवादे तो बिना तत्सुतौ UT # . g. by . II. p. 150, 54.7. p. 250; ET TU ** stasen feunt part I feet foNT UT TEATRICT: ETTE THE # FICUT. 534 q. by fam. on

731. II, 54, 37 p. 656, *. 4. P. 251.

488

(Vol.

(Yaj. II. 55, Nār. IV. 120). Kāt. 538 states 731 a special rule that whichever out of several sureties that have incurred joint and several liability is found present at the place (of the agreement) should be made to pay the debt; if such a surety has gone abroad his son may be made to pay the whole, but if the surety be dead the son should be made to pay only the share of his father (there being several sureties). If a surety being pressed or harassed by a creditor pays openly (before all people) the debt (wholly or in part) 732 then the debtor will be made to pay after three fortnights double of what the surety has to pay (Yaj. II. 56, Nār. IV. 121, Viṣgu Dh. S. VI. 44, Kāt. 539). But if the surety pays without being pressed he would get only what he paid and if the debtor reimburses the surety without loss of time then he has not to pay double. These rules apply to mooey lent; but in the case of grain, clothes and liquids the debtor must pay to the surety three, four or eight times respec tively ( Yāj. II. 57). Who could not be accepted as sureties has already been stated (on pp. 291-292 ).

Several were the modes of the recovery of debts. Manu (VIII. 47-48 ) requires the king to make the debtor repay his debt to the creditor in whatever way he can do it. There is a difference in the modes of recovery according as the liability is admitted by the debtor or not. If liability is denied then the only method is to file a suit for the recovery of the debt. But if the liability is admitted by the debtor, then Manu VIII. 49 (Nār. IV. 122), and Br. (S. B. E. vol. 33 p. 329 v. 54) mention five means of recovery viz. dharma (persuasion), vavahāra (legal proceed ing), chala or upadhi (trick), carita ( sitting down at his door ), or bala (compulsion to do work or confinement). It appears from Ap. Dh. S. (I. 6. 19. 1) that the method of sitting at the door for recovery of debts was known to Ap. (the creditor so doing is designated pratyupaviṣta ). In a Marwad Inscription

731. Temperaturasi TUTTI israstrea og framan PT UTTET IV. 120, Paog. VI. 42 ; Turhaat arca TE 4 wire : pot for FHEN ITT. 538. g. by faut. on T. II. 55, 79, #. p. 251. -

छायाधित or एकछापामविट is a technical expression meaning the same as * undertaklag joint and several liability and la explained by the formati as

Tuy OTTT RTUTU STATIHET #914fHAT SURUTUT

F arara स्थितस्तथा दाने प्रतिभषोऽपि प्रत्येक कल्नद्रप्पडामाय स्थिता

732. sfare 7 gareetfon: furfan: I feet: Fits farget goy HARTU PATEAT. 539. q. by work p. 657, 91. #T. III. p. 252, Rt. . p. 45; R. H. p. 253 ascribes it to both कास्पायन and Tहस्पति.

m]

Modes of the recovery of debts

439

dated samuat 1198 (1141-42 A. D.) this practice is called kaya-orata (yadi brāhmaṇaḥ kāyavratam kętrā mriyate). Vide E. I vol. XI. p. 37 at p. 40. These modes of recovery except vyavahāra are explained by Bșhaspati as follows:733 The method of dharma consists in sending messages (to the debtor ) from his friends and rela tives, in persuading him to pay with sweet worde, by following the debtor (i.e. by persistent dunning) and by frequent requests. Trick consists in the creditor borrowing from the debtor some ornament or other article under the pretext of its being required in a festival and not returning it or in retaining what the debtor has handed over to the creditor for being delivered to another; that is compulsion when the debtor is brought to the creditor’s house, is then confined or beaten and thus induced to repay the debt; that is ācarita where the creditor keeps tied his own wife or son or cattle at the debtor’s house or sits down at his door (fasting). All these methods could not be employed in the case of all debtors. Kat. (477-480) has already been cited (on p. 383) to show how the king is to employ the various methods in the case of brāhmaṇas, traders &c. If the creditor employs any one of the methods (other than vyavahāra ) and harasses a debtor when the latter claims judicial investigation and there is a doubt or dispute between the two as to the amount, the rate of interest, the liability to pay, the creditor would lose his claim and would have to pay a fine equal (to the claim )734. Kat. 589 and Br.735 (S. B. E. vol. 33, p. 331 verses 63-65) lay this down. But when the debtor admits his liability and yet does not pay and when the creditor therefore employs one of the means (other than a suit) appropriate to the caste and position of the debtor, then, if the debtor complains to the king

733. प्रतिपक्षसूर्ण दाप्यः सामादिभिरुपक्रमैः । धर्मोपधिपलात्कारैछसंरोधनेन च ॥ सहस्सम्बन्धिसन्दिष्टैः सामोक्त्यानुगमेन च । प्रायेण वा प्रणी दाप्यो धर्म एष उदाहतः॥ छपना याचितं चार्थमानीय अणिकाद्धनी । अन्वाहितादि वाहृत्य दाप्यते तत्र सोपधिः ॥ यदा स्वगृहमानीय ताडनायैरुपक्रमैः । ऋणिको दाप्यते यत्र बलात्कार: स कीर्तितः । दारपुत्रपशून पक्ष्या कत्वा द्वारोपवेशनम् । यत्रर्णी दाप्यतेऽर्थ स्वं तदाचरितमुच्यते ॥ वृह. प. by स्मतिचा II. p. 164, परा. मा. III. p. 255-256, कुल्लूक on मनु, VIII. 49, ग्य. प्र. pp. 256-257.

734. मरोग्यः क्रियावादी सन्दिग्धेर्थे कधश्चन । आसेधयंस्त्वनाध्य दण्डपो भवति धर्मतः ॥ प्रदातव्यं यद्भवति म्यायतस्तबदाम्यहम् । एवं पत्रर्णिको मते क्रियावादी स उच्यते॥ रूपसंख्यादिलाभेषु यत्र प्रान्तियोभवेत् । देयानादेययोषापि सन्दिग्धोधः स कीर्तितः ॥ अमा. पंधराशेयः सन्दिग्धे प्रवसंवे। प्रसयस बिनेयः स्यात्स चाप्यों न सिध्यति। यह. in स्मृतिच. II. p. 166, ग्य. प्र. pp. 259-260.

735. पीयेयो धनी कविरणिक न्यायवादिनम् । तस्मादत्सिहीत तत्सम चाप्पा इमम् ।कारया. 389, प. by मिता. on या. II. 40. अपराक p. 645, प. म. p. 260.

440

Hostory of Dharmaśāstra

[ Vol.

against the creditor, the debtor would be compelled by the king to pay the debt and a fine for unnecessary complaint ( Yāj. II. 40, Manu VIII, 176, Viṣṇu Dh. S. VI 19 ). Kāt. (580-584 ) provides that where 736 it is the custom of the country, the creditor may hold the debtor in restraint openly before an assembly of people until he pays what is due, that when a man 80 restrained has an inclination to answer calls of nature, he should be followed behind by the creditor or he should be allowed to go alone but fettered, that he should be allowed to go home for his meals and at night if he furnishes a surety, and that the surety will have to remain in restraint ( while the debtor is absent ), that if the debtor cannot secure a surety or does not accept the proposal of furnishing one he should be confined in jail or should be kept guarded by men; but that a respectable man who is trust-worthy and pure in conduct should not be put in jail, that he should be allowed to go without fetters or after being bound by an oath. Manu VIII. 177, Yāj. II. 43, Nar. IV. 131 lay down that if a debtor is unable to pay a debt then he should be made to do work suitable to his caste in the house of his creditor of the same or higher caste in order to gradually liquidate the debt (but without detriment to his own family) and a brāhmaṇa debtor should be made to pay by easy instalments 737. Kaut. III. 11 provides 738 that agriculturists and king’s servants should not be seized ( for debts) at the time when it is the season for them to work, nor a woman for her husband’s debt unless she has promised to repay her

736. urular refor*: Thirt AEI Tram que mufura पंथा। विमूवशका यत्र स्वाद धार्यमाणस्य देहिनः । पृष्ठतो वादगन्तव्यो निबद्धं वा समुत्स् जेत् ॥ स कृतप्रतिभूश्चैव मोक्तव्यः स्थाहिने दिने। आहारकाले प्राप्ते च निबन्धे प्रतिभूः स्थितः ॥ यो दर्शनपतिमचं नाधिगच्छेन चाश्रयेत् । स चारके निरोद्धयः स्थाप्यो वाद्य रक्षिणः ॥ न चारके निरोद्धव्य आर्यः प्रात्यायिकः शुचिः। सोनिषद्धः प्रमोक्तव्यो निबद्धः

u ar 11 Frig1. 580-584 4. by fila . II. p. 165, A. t. pp. 69-70, *. 4. pp. 257-258. F. t. p. 67 says that the mode in the first verse is a method of HETT. In modern times a debtor who owes a decretal debt can be kept in civil jail under Order 21 rules 37-40 of the Civil Pro: Code. In most European couotries imprisonment for debts was abolished only in the 2nd ball of the 19th century. Even now in England under certain circumstances a judgment debtor may be imprisoned for 42 days. For foto vide STTTT I. p. 36 AT

… ficut

737. formaron ** #refra meron d Tapa arreta: ranta fra: # TK. q. by R. F. p. 71, 79. . p. 261. …738. STOOT: AS PART Targanit apoft miferoft arrogoraran TOTEMuration: 1 BUT III. 11. '

)

Rules for the recovery of debts

441

husband’s debt, but wives of cowherds and those who take a lease of lands for half produce may be arrested for non-payment by the husband. As compared with the harsh legislation against debtors in most ancient and medieval systems of jurisprudence the rules laid down by the smstis are very mild and humane 739. If there were several creditors there was priority among them i.e. the earlier debt prevailed over the later one; a brāhmana creditor however ( whatever the date of his advance) was preferred to a ksatriya or other creditor (Yaj. II, 41, Kāt. 514). Kaut 740 states that the debts owed to the Crown and a śrotriya take precedence over other debts and that unless the debtor is going to abscond several creditors should not simultaneously proceed against one debtor. Section 56 of the Bombay Land Revenue Code makes Government assessment a paramount charge on the land. But aoc. to Kāt. (513) if several debts were contracted in writing on the same date, they should all be treated as equal and paid off pro rata from the debtor’s assets if insufficient; but, if a creditor established that a particular article belonging to a debtor was manufactured by the debtor with his money only, that creditor alone got the money recovered by sale of the article ( Kāt. 515 ). Bharadvaja states 741 that if a debtor has no cash then the creditor should be paid by sale of the debtor’s other property in order viz. grain, gold, iron, cattle, clothes, land, slaves, and conveyances, ( in the absence of fields ) his garden and lastly his house and in the absence of even a house time should be granted to debtors of the three higher castes,

739. Under the law of the Twelve Tables in Rome a creditor could put the debtor to death or sell him to a stranger beyond the Tiber or, if there were several creditors, they could divide the body of the debtor among them. selves after the third market day (Table III in Ortolan’s Roman Law p. 106). Vide Sen’s ‘Hindu Jurisprudence’ pp. 316-17 for later Roman and Irish rules.

740. tror here

a t graagterary FATTI Teta हो । राजश्रोत्रियदय पा पूर्व प्रतिपादयेत् । कौटिल्य III. 11; नानर्णसमवाये तु पयत्यूर्वकृत TUEL I rated am Freitag 1 4. q. by way. II. p. 167. # R. D. 255.

741. Forma prawna PARTE Prost site Therapa दिक तथा ॥ वर्ष पूर्वासवर्ग च पाहनादि पधाक्रमम् । धनिकस्प त बिक्रीय प्रदेयमनु पूर्षशः । क्षेत्राभा तथारामस्तस्याभावे गहनाया । द्विजातीनो पहाभावे कालहारो विधीयते॥

ON q. by toy. Fa. p. 254. 7. A. III. 259, 199ITATE p. 116. In view of this passage the remark of Mr. Golap Chandra Sarkar in his Hindu Law’ (7th ed. of 1933) p. 432 ‘Hindu Law nowhere contemplates

compulsory sale of immovable property in execution of decrees’ seems bardly correct.

D. 116.

3. p. 432 •Hind Golap Chandra Set442

(Vol.

When a debtor was not able to return the entire debt in a lump, he should write on the back of the document of debt the sums paid by him from time to time or the creditor may pass & receipt (upagata or praveśapatra, as the Mit. designates it) to the debtor signed by himself (Yaj. II. 93, Nār. IV. 114, Viṣṇu Dh. S. VI. 26). If the creditor, though requested by the debtor, would not pass a receipt he was to lose the balance of his debt (Nar. IV, 114). Nār. IV. 115 and Bṛ. (S. B. E. vol. 33 p. 332 verse 66 ) further provide that if the creditor does not write down (either on the bond itself or in a separate document) the money recovered by dharma or some other method then the debtor himself will be entitled to interest on the amount paid by him. 741When the whole debt is paid off, the creditor should tear off the bond of debt or he may execute another document in order to show that the debtor is freed from the debt (if the original is lost or is not within easy reach) and when a debt is borrowed in the presence of witnesses, it should be re turned in the presence of the same or other witnesses (Y&j. II. 94, Viṣṇu Dh. S. VI. 24-25). Nar. IV. 116 requires the creditor to return the document when the whole debt is paid off or to announce openly to others that it has been paid 742.

It has now to be seen who (other the man himself) are liable to pay a man’s debt. The liability to pay another’s debt may arise on three grounds, (1) religious, (2) equitable and nioral, (3) legal, such as agency (express or implied) or authority. That the song and grandsons of the original debtor are liable to pay on religious grounds the debt of the father is expressly stated by numerous writers such as Kaut. 743 III. 11, Yāi. II. 50, Nar, IV. 4, Bṛ. (s. B. E, vol. 33 p. 328 verse 49 ), Kāt. (560), Vṛddha-Hārīta VI. 250-51, Viṣṇu Dh. S. VI. 27.

741 a. waffentia V art in qUT EAT. NYTT TT. q. by f. F. . 80, 4. #. p. 277.

742. FUT

Teluar formato forgfir: PROTETTEN भारद IV. 116. असहाय explains ‘प्रतिश्रये विशुद्धिपत्रम्’, while the स्मृतिचा II. p. 162 and . 4. p. 277 read few and explain’ sfaram# FFAT साक्षिभिःभाषणम्।.

743. ffatura Tarantinere a FA: HTTP: I wi FITX III. 11; rarament per gar erotetti p er

uffie # F IV. 4; Fuerauiense o garanter TATU

ART O q. by the FAWT. OR 4. II. 30: Taurupeau statut : 1 pou are interpretat # #TUT. 560 4. FF. II, p. 171, 937. #. III, p. 264, p. t. p. 49, 59. #. p. 264.

Great-grandson’s liability for debts

443

The important question is whether the smrtis declare the liabi. lity of the great-grandson. It is clear that smptis like that of Bṛ. expressly say that the great-grandson is not liable to pay his great-grandfather’s debt. The Viṣṇu Dh. S. VI. 28 says that the descendants beyond the grandson need not pay if they are unwilling to pay. Others like Nar. IV, 4 and Kat, say that the obligation to return a debt ceases from the fourth. The question is what is meant by the fourth i. e. is it meant to exclude, in calculating, the original debtor or to include him? It is possible to hold (particularly because the great-grandson is not expressly mentioned in most emṛtis) that the fourth means ‘inclusive of the original debtor’. But this appears to be in conflict with the rule in Manu IX. 137 (which is the same as Baud. Dh, S. II. 9. 6, Vas. 17. 5, Viṣṇu Dh. S. 15. 46 ) that the son, grandson, and great-grandson confer the greatest spiritual benefit on the ancestor, the rule (Manu IX. 186, Nār. IV. 6) that pindas (in srāddha) are to be offered by three persons in descent and the general rule that whoever takes the inheritance must offer the pinda and pay the debts of the ancestor (Gaut. XII. 37, Yāj. II. 51, Nār. IV. 23, Viṣṇu Dh. S. XV. 40 and VI. 29). Therefore, following the canons, viz. the rights to property aro co-extensive with the liability to perform sraddha and to pay off debts (which is quite logical and reasonable), that the texts relating to the same subject matter must be harmonized and reconciled as far as it is reasonably possible 744 to do (ekavākyatā-nyāya), that apparently conflicting texts are to be assigned their appropriate spheres (viṣayavyavastha), and that a direct conflict (and so an option) is to be presumed only if no other recourse is open, the Mitākṣarā and other commentators put forward the interpretation that the texts stating that the great-grandson is not liable to pay the great-grandfather’s debt apply only to cases where the great-grandson inherits no ances tral property, but that he is liable if he takes ancestral property. Dr. Jolly in his note on Nār. IV. 6 (in S. B. E. vol. 33 p. 44) remarks:“the doctrine, viz. the liability to pay debts contracted

744. This principle is stated by the fam. On T. I. 4-5 as gaat (Hippo दीनां) प्रत्येक प्रामाण्पेपि साकाक्षाणामाकारक्षापरिपूरणमन्यतः क्रियते विरोथे विकल्पः ।.. मेधातिथि on ममु. XI. 216 puts it in the same way ‘एकज्ञानत्वात्सर्वस्मृतीमामसति fatta Hat T fou a faen:’. This view is based on a II. 1. 46

PUTER 174

M FT. The word T AT occurs in Vedāa tasūtra III. 4. 24. In Vithal W. Prahlad 39 Bom, 373 et p. 379 this principle has been judicially recogaized. . . .. … … .

[ Yol

by an ancestor extends to the great-grandson, is opposed to the teaching of such an eminent authority as Vijñānesvara, who maintains in the Mitākgard that the great-grandson 745 is not liable for debts contracted by his great-grandfather, and conversely that he does not inherit his property. He makes similar remarks in his Tagore Law Lectures for 1885 (on ‘adoption, partition’ &c. p. 171). Dr. Jolly is under some misapprehension since the Mit, in two places deals with this matter and expressly states that the great-grandson is liable to pay debts contracted by his great-grandfather if he has taken ancestral estate but not other wise. The following propositions are deducible from the smrti texts and authoritative commentaries like the Mit. and the Viramitrodaya (Vyavabāraprakāśa). The 746 first proposition is that the debts of a man must be paid by his three descendants (son, grandson and great-grandson) if they have ancestral estate in their hands (Mit. on Yāj. II. 51 quoted in note 745, Sm. C. II p. 171, V. P. p. 264). The 2nd proposition is that even when no ancestral estate was taken by the descendants the son was liable to pay his father’s debts with interest, the grandson was liable to pay his grandfather’s debt but without interest and the great-grandson was not liable to pay even the principal, if he was unwilling to pay. This proposition is enunciated by Viṣṇu Dh. S. VL 27-28, Bṛ.(S. B. E. vol. 33 p. 328

.745. On अणमात्मीय &c.of हस्पति referred to above the मिता. (on या. II. 50) remarks, ’ * TEUFET Frame : 1 TATART FUTUTETI taferents. On the words que tamen fu: (on या II. 51) the मिता. explains: इत्येतदपि पुत्रपौत्रहीनस्य प्रपौत्रादयो यदि रिवर्थ राहन्ति तदा मण वाप्याः भाग्यथेत्येवमर्थम् । पुत्रपौत्रौ च रिक्धग्रहणाभावेपि दाख्या. firmy 19. Dr. Jolly probably misunderstood s tarter and held it to mean ’tbāt a great-grandson does not take the ancestral estate’, but it really means if he has not taken &c.’ The area. II. p. 171 says, ’ प्रपितामहादिकतापकरणामधिकारो चतुर्थादरग्रहीतरिक्थस्यैष न पुनहीतरिक्थस्यत्यषण मतव्यम् । … गृहीतरिक्यानां तु पौत्राणामधिकारो वृद्धिसाहताणापाकरणे । देयं पैतामह

TOURI Hempel para OB is follower A11. 26 (F.!

to you and Das had mortgage of the moris Gobardha

746. The first proposition is followed by modern decisions in British India. Vide Lachman Das v. Khunnu 19 All. 26 (F, B.) which holds that the mortgagee of a man who bad mortgaged joint ancestral property can epforce his mortgage against the grandson of the mortgagor for the realiza tion of interest as well as principal, Ladu Narain v. Gobardhan 4 Patna 478, Masit Ullah v, Damodar Prasad 48 All. 518 (P. C.) where the Privy Cooncil held that the great-grandson is liable for the debts of his great. gruodfather as much as he is liable for those of his father or grandfather. Io all those cases passages from the smrtis of Yāj., Nār, and Bṣ, and from the Mit. and the Viramitrodaya are quoted and discussed.. .

III }

Liability of sons and other descendants

445

V. 49 referred to on p. 443) and Kat. 556 747. In Narasimharav v. Antaji 2 Bom. H. C.R. 61 it was held ( probably following Bṛhas pati, though not quoted in the judgment) that the grandson was liable to pay the debt of his grandfather without interest even if there was no ancestral estate. This was felt to be a great hardship on heirs (taking no ancestral estate) and in order to remove it Bombay Act VII of 1866 (the Hindu Heirs’ Relief Act) was passed whereby it is provided that a son or grandson is not liable to be sued for the debts of his deceased ancestor merely by reason of his being such a son or grandson and that the son, grandson or other heir shall be liable only to the extent of the assets that come to his hands. The game is the law laid down in other parts of India by judicial decisions. Br. (S. B. E. vol. 33 p. 328 verse 48 ) recommends that the father’s debt must be paid first of all and after that one’s own debt; but a debt of the grandfather must always be paid even before the prece ding 748 two kinds of debt. These two propositions of Hindu jurists are very lucidly, but succinctly, set forth by the Vira mitrodaya quoted below 749. The third proposition (which is an exception to the above two) is that even a son is not liable to pay certain illegal and immoral debts of his father. This pro position will be discussed a little further on. A fourth proposi tion is that even when the father is not dead, the son, grandson or great-grandson may be liable to pay the father’s or other ancestor’s debt under certain circumstances. Yāj. II. 50 pro vides that sons (and grandsons ) must pay the debt of the father when he is dead or has gone to a distant country or is afflicted with an incurable disease. Nār.750 IV. 14, Viṣṇu VI. 27, Kat.

747. पैतामहं तु यत्पुत्रैर्न वत्त रोगिभिः स्थितैः । तस्मादेवविध पौत्रैर्देय पैतामह समम् ।। 7241. 556 q. by T. II. p. 170 and a. 8. D. 48.

748. fas argent to ouratecher 9: The Stang FTET I T.q. by 4. 9. P. 185, R. T. p. 47, TTT. HT. III. p. 264.

749. aut f ugonAEMUT: hufaa 944 1 year ago firuugo सोदय देयम् । अग्रहणे मूलमेव । प्रपौत्रेण तु रिक्याग्रहणे मूलमपि न देयम् । व्य. म. p. 264.

750. une formatura E AT: a tergruita i preg VI. 27; frumrat era parerea ta I PÖNTTTTTTTTOP for : # ग्याधितान्मत्ताखाना तथा दीर्घमवासिमाम् । ऋणमेवंविधं पुत्राञ् जीवतामपि दापयेत् ॥ सांनिध्येपि पितुः पुत्रैर्षण देयं विभाषितम् । जात्यग्धपतितोन्मत्तक्षयश्चित्रादिरोगिणः॥ कारया. 548–550 q. by U . p. 650, f. t. pp. 50-51, T. #T. III. 264, p . II. p. 169, www.fA. pp. 255-56. Some of these ascribe the last to Trufa. The first and third verses of Kāt. are quoted in Peda Venkanna v. Sreenivasa 41 Mad. 136 at p. 149. The te ft. (p. 256) remarks that these texts indicate that during the father’s lifetime only the sops are liable for the father’s debts and sot the grandsons, but if no sons are alive thon even grandsons will be liable,

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548-550 state that when the father, though living and near, becomes an ascetic (acc.to Viṣṇu), is afflicted with such diseases or calamities as blindness from birth or loss of caste ( due to grave sins), lunacy, tuberculosis, leprosy and other (incurable) diseases or when he has left his country or has gone on a long journey or is very old (above 80) the son will have to pay the debt of the father after the twentieth year (from his going abroad). Acc. to V. R. (p. 50) if the father’s disease was incu rable or if it was certain that he would not return from his journey then the son was bound to pay at once and was not entitled to wait for 20 years. Kat. (552-553) introduces 751_a further restriction that even when the father is dead, if the son has not attained years of discretion (i.e. if he is a minor) he need not pay the debt of his father during his minority; but when the proper time to pay arrives he must pay the debt; otherwise the (ancestors) may remain in hell. Thus the son’s liability during the father’s lifetime or absence was not abso lute but limited according to the smrtis and digests; judicial decisions, however, have brushed all this aside and the son’s liability to pay his father’s debts during the latter’s lifetime is now as absolute as after his death. This will be discussed further on.

According to all smrti writers even the son, though he may have taken the ancestral estate, is not liable to pay certain debts of the father which are compendiously described as * illegal or immoral’ in the decisions of courts. Gaut. 752 XII.

751. नामाप्तव्यवहारेण पितर्युपरते कचित् । काले तु विधिमा देयं वसेयुर्मरकेन्यथा । अमामव्यवहारस्वतन्त्रोपि हि नर्णभाक । स्वातम्यं विस्मृतं ज्योचे ज्येष्ठ गुणवयःकृतम् ।। कास्था. 552-553 4. by स्मृतिच. II. p. 164, व्य. प्र. p. 263. The 2nd is नारद IV. 31. ___752. प्रातिभाग्यवणिशुल्कमयतदण्डाः पुत्रानाम्याभधेयुः । गौ. XII. 38; प्रालि. भाग्य वडघुल्कशेषमाक्षिक सौरिकं कामदामच नाकामः पुत्रो वायादो वा रिक्थहरो दद्यात् । अर्थशान III. 16 मुराकामयुतकतं वाल्कावशिष्टकम् । वृधादाने तथैवह पुत्रो वद्यास पदकम् । दर्शनप्रतिभूर्यत्र मृतः प्रात्ययिकोपि वा । न सत्पुत्रा अणं दर्दानाय यः स्थितः ॥ था. II. 47, 54 ; न पुत्रर्ण पिता दयावयापुत्रस्तु पैतृकम् । कामक्रोधसरायूतमातिभाव्यकृत विना भारद IV. 10; दण्ड वा वशेष वाल्क तच्छेषमेव वा । न वातव्यं त पुत्रेण यच्च न व्यावहारिकम् ॥ उशनस् q. by मिता. on या. II. 47; कास्यायन explains कामक्रोध कुत debts (mentioned in Nar. IV. 10 and Br.) as follows: ‘परपूर्णसिये यनु विद्यास्कामकृतं वृणाम् । यत्र हिंसा समुत्पाय क्रोधाइ बग्य विनाश्य वा । उ तुधिकरं यतु विद्यात् क्रोधात हि तत् ॥ कात्या. q. by अपरार्क p.648, स्मतिच. II. p. 170, परा. मा. III. p. 266, पि. र. P. 58, ग्य. प्र. p. 266 अथावान is explained as पूर्व पन्विनि माले पकुचे कितवे शठे । चादचारणधीरेषुदत भाति निष्फलम् ॥q. by मिता. on या. II. 47, स्पतिच. ii. p. 170.

MI)

What debts need not be paid by sons

38, Kaut. III. 16, Manu VIII. 159-160, Vas. 16. 31, Yaj. II. 47 and 54, Nār. IV. 10, Bp. (8. B. E. vol. 33 p. 329 verge 51), Kāt. (564-565), Uśanas and Vyāsa provide that the son is not bound to pay the following debts of his father viz. those incurred as a surety (for honesty or appearance), for drinking or in gamb ling, those arising from idle promises (to bards, wrestlers and the like), debts for promises made under the influence of wrath or illicit love to women, the balance of a fine or toll and those that are not vyāvahārika. A debt arising from wrath is explai ned by Kāt, as one where the father causes physical injury to another or destroys another’s property through anger and then promises something to pacify the person wronged. As regards the suretyship debts of the father, Yaj. II. 54, Vyāsa and Kāt. (561) provide that when the father was a surety for payment, then the son was bound to pay the principal of the debt for which the father stood surety, but the son of the son was not liable at all to pay the suretyship debt of his grandfather even when the latter was a surety for payment 753. These verses about the debts which the son was not bound to pay have been quoted and explained in numerous decisions of the courts. But as this work does not profess to be a treatise on modern Hindu Law those cases are passed over here. What is meant by * debts that are not vyāvahārika’ has presented the greatest difficulty to the medieval commentaries and digests and also to modern courts as noted below 754. Kāt. 534 further notes that

753. ऋणं पैतामहं पौत्राः प्रातिभाग्यागत सुतः । सर्म दासत्सुता तु न दाण्याविति #1974: # 47 q. by the fant, on 11. II. 54; praetore gitare a par fra OTTO * ariyot far 14 # #7697. g. by 39 77 p. 656, fq. T. P. 44.

754. 47 * YETU * *optare: 1 Hour p. 658; ‘arte faz. II. p. 170; 7 super raraftate ! 19. 4. p. 265: 7

praturfreu: 1 yet, Tagar i fa. X. p. 17. Cole brooke translates # same as “debt for a cause repugnant to good morals’; other renderings are “which as a decent and respectable man the father ought not to have incurred’ (32 Bom. 348 at p. 351); not lawful, usual or customsry (39 Cal. p. 862. at pp. 868-869); ’not suppor table as valid by legal arguments and on which no rigbt could be esta. blished in a court of justice in the creditor’s favour’ (37 Mad. 458 at p. 460); vide Bai, Mani , Usafali 33 Bom. L. R. 130 (at p. 133) and Bal v. Maneklal 56’ Bom, 36 where the various meanings of ‘avyāvabarika and the conflict of judicial decisions are set out (at pp. 50-53). In the latter case the wide meaning of the words given in 32 Bom. 348 has been disapproved of (at p. 53). In Govindprasad v. Raghunathprasad I. L. R. (1939) Bom, 533 & Full Bench has dealt with the meaning of .avyāvahārika’. In Hemraj u. Khomchand I. L. R. (1943) All. 727 the Privy Council state the various renderings of avyāvahārika given by different authors and judges. and hold that Colebrooke’s rendering makes the nearest approach to the real meaning of the word as used in the smrtis and that it is the character of the debt that is to be looked to and not the actions of the father.

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where the father became a surety for appearance (or honesty ) after receiving a pledge from the person whose gurety he became, then the son of the surety may be made to pay the money due from that pledge in case the father is dead or has gono abroad 755

The case law on the subject of the father’s debts and the son’s liability to pay them has assumed enormous proportions. This is not the place to discuss the case-law. But as the courts in India profess to follow the Hindu Law of the sages and medieval digests, it is necessary to examine some of the principles laid down by the latest decision of the Privy Council. In Brij Narain v. Mangla Prasad 51 I. A. 129 (=46 All. 95) the following five propositions are laid down by the Privy Council ( at p. 139): (1) the managing member of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity ; (2) if he is the father and the other members are the sons, he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt; (3) if he purports to burden the estate by mortgage then, unless that mortgage is to discharge an antecedent debt, it would not bind the estate; (4) antecedent debt means antecedent in fact as well as in time, that is to say, that the debt must be truly independent and not part of the transaction impeached; (5) there is no rule that this result is affected by the question whether the father, who contracted the debt or burdened the estate, is alive or dead. It

755. एहीत्वा बन्धक यत्र दर्शनस्य स्थितो भवेत् । विमा पित्रा धनं तस्माद् दाप्यः FATTEO TH: #747. 534, q. by the Mit. on Yaj. II. 54, 3 p. 656. Vide Choudhuri Govind Chandra v. Hayagriba 10 Patna 94, where it was beld that when a father stood surety for the honesty or good behaviour of another as guardian for a minor’s property, the son was not bound to pay the suretysbip debt of the father. In Kottapalli v, Kanuparti 58 Mad. 375, where the father executed a surety bond that a certain judgment debtor would file an insolvency petition within a specified period and the debtor failed to do so, it was held that the guarantee was one for confidence or bonesty and that the sons were not liable on the father’s death. Similarly in Dhir Narain v. Shiva Sahay A, I, R, 1935 Pataa 127 it was held that song are not liable under Hindu Law where the father atood surety for appearance only.. Io Narayan v. Venkatacharya 6 Bom. L. R. 434 it was bold that under the law of the Mitaksara a grandson is not liable to pay a debt which his grandfather contracted as a surety unless the latter in accepting the liability of a surety received some consideration for it,

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Divergence of modern decisions from smītis

449

is necessary to see how far these principles agree with or deviate from the law of the smrtis and the digests. The first proposition is in consonance with the law of the smrtis and of the commentaries like the Mit. Yāj. II. 45 provides 756 that whatever debt is contracted by the head of the joint family for the necessities of the family has to be paid by the members who take the ancestral estate when the head is dead or goes to a foreign country. The Mit. on Yāj. II. 114 quotes and explains & smrti text “Even one (the head or manager of a joint family) can make a mortgage, sale or gift of immovable property in a time of distress, for the necessities of the family and particular ly for religious and charitable purposes”. What is meant by * debts in times of distress’ and ‘kuṭumbārthe’ is explained by Kāt. (542-43 ) quoted in n. 756. This has been the foundation of numerous cases, the first and the most important of which is that of Hunoomanpersaud v. Mussumat Babooee 757 6 Moore’s Indian Appeals p. 393 (P. C.). The 2nd proposition laid down

756. H i vanter To Taqyealar ya da ima ay Part # 79. II. 45; 997 Teha reta antaa 150 a murerea तु तत् ॥ कन्यारवाहिकं चैव प्रेतकार्ये च यत्कृतम् । एतत्सर्व प्रदातग्यं कुदुम्न कृतं प्रभोः ।। Freyr. q. by 37 p. 647, 977. AT. III. p. 268. Nār. IV. 3, Manu VIII. 166, Viṣṇu Db. S. VI, 39 contain similar provisions, all of them employing the word gue (for the purposes or benefit of the family).

757. At pp. 423 and 424 of 6 Moore’s Indian Appeals the Privy Council employ the following words that have become classical : The power of the manager for an infant heir to charge an estate not bis owo is under the Hindu Law a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be averted or the benefit to be conferred upon it in the particular instance, is the thing to be regarded…. They think that if the leader does inquire and acts bonestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge and they do not think that under such circun stances, he is bound to see to the application of the money. The words

the actual pressure, the benefit to be conferred’ and the remarks about inquiry by the lender are a prolific source of litigation and have given rise to a mass of case-law. In L. R. 51 1. A. 129 at p. 137 the Privy Council them selves say that the distinction” made between secured and vosecured debts of the father is anomalous. They give an instance. ‘A father who is manager borrows a like sum from A and B. TO A he gives a mortgage on the family estate containing a personal covenant. To B he gives a simple acknowledgment of loan. B sues and gets a decree; on this decree execution can follow and the estate can be taken. A, suing on his mortgage, cannot recover. (because the debt was not antecedent).

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above also follows from several smrtis (such as Yaj. IL. 50, Viṣṇu Dh. 8. VI. 35, Nār. IV. %, 4, 6) and the rules about immoral debts cited above. But it is difficult to understand why the Privy Council make a distinotion between a simple personal money debt of the father and a debt secured by a mortgage ( as in propositions % and 3). The ancient texts and commentaries make no such distinction. Vide 42 Mad. 711 at p. 731, 26 Bom. 206 at pp. 217-219 (F. B.) and 60 Bom, 311 (F. B.) where this is pointed out. With the greatest respect it must be said that the distinction is not only without dharmaśāstra authority, but is also anomalous. The distinction between ‘antecedent debt’ and a debt contracted at the time of execut ing a mortgage is unknown to the emptis or digests. The Privy Council had used for the first time in a very early case (viz. Suraj Bunsi v. Sheo Proshad 61. A. 88 at p. 106 = 5 Cal. 148, 171 ) the words ‘antecedent debt ‘758 for which there is nothing corresponding in the Sanskrit authorities and round which elaborate arguments came to be centred in numerous later cases. According to the Privy Council (proposition 5) the son’s pious duty to pay his father’s debt is as absolute during the father’s lifetime as after his death. It has been shown above that the duty was not absolute but qualified and limited during the father’s life according to the smartis.

Yaj. II. 5%, Kaut. (IIL 11 ) provide 759 that husband and wife; father and son and brothers cannot, as long as they are undivided, stand sureties for each other or be debtors and creditors of each other or be witnesses for each other. The Mit. has a long note on Yāj. II. 52. It shows that a wife may be divided us to estate from the husband if the latter desires (as laid down in Yaj. II. 114) and that in that case there may be the relation of debtor and creditor between them.

758. The proposition laid dowa in 6 1. A. at p. 106 is ‘where joint ancestral property has passed out of a joint family, either under a con veyanco executed by a father in consideration of an antecedent debt or in order to raise money for an antecedent debt or under a sale in execution of & decroo for the father’s debt, his sons, by reason of their duty to pay their fatber’s debts, cannot recover that property, unless thoy show that the debts were contracted for immoral purposes and that the purchasers had notice that they were so contracted’.

759. TOTS TEUSfoa:

g r i raya PART * सातस्। पा. II. 52: इम्पत्योः पितापुत्रयो धारणा चाविभक्तानां परस्परकतमणमसाया, Where III. 11.

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The wife’s liability for husband’s debts

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The Mit. further explains the sūtras of Apastamba 760 (Ap. Dh. S. II. 6. 14. 16-19) which lay down there can be no division between husband and wife, for since the day of marriage they have to perform religious rites together, they also participate together in the rewards of merit arising from religious rites and also in the wealth acquired; for this reason when the husband has gone abroad if the wife spends on necessary occasions ( out of the family wealth) it is not declared to be theft’. The Mit. explains that the absence of division between husband and wife is restricted to religious rites performed with $rauta fires or smārta fire and in the rewards of meritorious acts and not in all actions or as to all property. Therefore in other charities where no sacred fire is required (purta acts such as constructing a well or a public park ) they have separate rights. Vide S. V. pp. 353 for various explanations of Bharuchi and others on Ap. Dh. S. and V. P. pp. 255-56.

The father is not bound to pay his son’s personal debt; the husband is not liable to pay the wife’s debt, nor the wife her husband’s or son’s. But in all these cases if the debt is incurred for the benefit or purposes of the family by the son, the wife or the husband then the father, husband or wife respectively would be liable (Yaj. II. 47, Nār. IV. 10–11, Kāt. 545, 579) 761 If the father promised to pay his son’s individual debt or if he appro ved or acquiesced in it he was liable to pay it. Manu VIII. 167, Yaj. II. 45, Nār. IV. 12, Br. (S. B. E. 33 p. 329 v. 50), Kāt. (545) provide that a debt incurred for the purposes of the family by any one such as the son, brother, uncle, the wife, the mother, the pupil or a servant or a slave even without the consent of the head of the family when he has gone abroad, should be paid by the head of the family. This liability and the liability when the manager of a family contracts a debt for the benefit or neces sities of the family arise from agency (implied) or authority, Kaut. ( II. 11 ) holds that the husband may be seized (for work)

760. prerastat foram roue ! morgon her og i au yugning इम्पपरिप्रदेषु च । न हि भर्तुविश्वासे नैमित्तिके दाने स्तेपमुपविशन्ति । आप. प. स. II. 6. 14. 16-19.

761, मोषितस्यामतेनापि कम्पार्थसणे फतम् । दासनीमाशिष्या चापण वा TUN GT (545) q. by en p. 648, T. HT. p. 268, R. v. 56. MUTTA roads maghrearamount. Waru would mean agaates residing in the house, This verse is quoted in Virasdami v. Appasvami 1 Mad. H. C. R. p. 375. 3790, freewasvurarafereetart: I

g ot to wat THE IT. q. by ray. II. p. 174.452

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if he starts to go abroad without providing for the return of the debt contracted by his wife.762

The general rule that the husband was not liable to pay the wife’s debt had an exception viz, the husband was liable for the debts of the wife in the case of cowherds, vintners, actors, washermen and hunters (and the like) whose income depends on their wives and whose household expenses are defrayed by their wives (Yaj. II. 48, Viṣṇu Dh. S. VI. 37, Nar. IV. 19). Similarly the rule that the wife was not liable for the husband’s debt had certain exceptions, viz. a debt of the husband which she promised to pay because he was dying or going abroad or which was contracted jointly with her husband 763 ( Yāj. II. 49, Nār. IV. 16-17). The Mit. on Yaj. II. 49 answers the objection raised by some that, as according to Manu VIII. 416 ( = Udyogaparva 33.64) the wife, son and slave are without property and whatever they earn is acquired for him to whom they belong, the wife would not be able to pay anything at all. The reply is that this verse of Manu does not mean that a wife or son can own no property at all, but all that it declares is that they have no independent power to dispose of their property.

The order in which persons are liable to pay a man’s debts after his death is declared by Yay. II. 51, Nar. IV. 23, Br. (S.B.E. vol. 33 p. 329 verse 52), Kat. (562, 577), Viṣṇu76 VI. 29-30.

762. पतिस्तु प्रायः श्रीकृतमणमप्रतिविधाय प्रोषित इति । अर्थशान III. 11.

763. नमी पतिकतं दद्यारणं पुत्रकृतं तथा । अभ्युपेताहते यशा सह पत्या कृतं भवेत् ॥ नारद IV. 16: भर्ना पुत्रेण वा सार्धं केवलेनारमना कृतम् । अणमेवंविधं देयं नान्यथा तस्कृत नियामतुकामेम या भी मोक्ता देयमणे स्वया । अप्रपनापि सा दाप्या धनं यथाश्रितं नियाम्॥ कात्या. 546, 547q. by स्मृतिच. II. p. 176, न्य. प्र. pp. 273-274. In I. L. R. 1 Bom 121 at p. 124 Kāt. 546 is cited. in Narotam v. Nanka 6 Bom. 473 it was held that a married woman who contracted a debt jointly with her husband was liable to the extent of her strīdhana only and not personally,

___764. धनश्रीहारिपुत्राणामुणभाग्यो धनं हरेत् । पुरोऽसतोः श्रीधमिनोः मीहारी धनि पुत्रयोः ॥ नारद IV. 23: पूर्व दद्यालनग्राहः पुनस्तस्मादनन्तरम् । योषिमाहः सुताभाष पुत्रो वास्यम्तनिर्धनः ॥ कात्या. (577)q. by सुतिच. II. p. 172, ज्य. प्र. p. 271; रिक्थ हा अणं देयं तदभावे च योषितः । पुरश्च तदभावन्यै रिक्थभाम्भिर्यथाक्रमम् ॥ कात्या. (562) q. by विश्वरूप on या. II. 47: विश्वरूप quotes a prose passage of हस्पति ‘धननीहारिपुत्राणां पूर्वाभावे यथोत्सरमाधमय तदभावे क्रमशोन्येषां रिक्थभाजाम्।।, while later works like the स्मृतिच. II. p. 172 and न्य. प्र. p. 267 quote a verse of वृक्ष. ‘श्रीहारीच तथैव स्यावभावे धनहारिणः’. The वैजयन्ती on विष्णु, IV. 30 explains Yaj. N. 51 as अन पुत्रो विशेष्यः तस्यैतानि श्रीपपि विशेषणानि । तपानेकापसमवाये रिक्यमाः पुषःतदभाव कृतदारासदाराणी समचाये योपियाहः … । तदभारे अनन्या भितग्यः न विचन्ने अन्ये पुत्रदारादयो यस्य स अनन्या पुषदारादिरहितः । नमित दर्य अनासो अभिमन्य … निर्धनो वा । अनापसाहितः अभितायः मायमपवलोपी समासः । तारशा पुनःमण दाप्यः।

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Whoever takes the wealth of the deceased ( whether a son or a collateral heir ) is primarily responsible to pay the debts of the deceased; but if the deceased died without leaving any property, then he who takes his wife has to pay the deceased’s debts ; if there be no wealth or taker of the deceased’s widow, then the son even if he succeeds to no wealth has to pay. This liability may be said to be based on the equitable and moral principle that whoever takes the wealth of the deceased or his widow (over whom the deceased had a sort of dominion) was bound to pay his debts. There appears to be some confict between the texts; but it is more apparent than réal. Verges (like Kāt. 577 ) where the son is placed after the taker of wealth and before the taker of the widow refer to a son who has separate and independent wealth of his own and is more wealthy than the taker of the widow (though he himself being disqualified did not succeed to, ancestral wealth). When there is no wealth and there are several sons one of whom is congenitally blind or otherwise incompetent to succeed then the other sons are liable. From the fact that the taker of the widow is made liable for the debts of the first husband it should not be supposed that the ancient sages approved of widow-remarriage. On the contrary they condemned it ( vide Manu V. 162), but, as the Mit. (on Yāj. II. 51 ) remarks remarriages took place by custom among certain castes and nothing could prevent persons from taking widows as kept mistresses. Therefore as the wife was half of the husband (acc. to Vedic and other passages q. In H. of Dh. vol. IL pp. 428, 584 n. ) she was practically the husband’s wealth (Nār. IV. 22 expressly says so ) 765 and so the taker of the widow was saddled with the obligation to pay the debts of the deceased. This sentiment continued to modern times and in the Bombay Presidency the Legislature had to declare ( by Bombay Act VII of 1866, sec. 4) that no person who has married a widow shall merely by reason of such marriage, be liable for any of the debts of any prior husband of such widow’. The Vaijayanti on Viṣṇu Dk. S: VI. 30 quotes Yaj. II. 51 and Nār. IV. 23 and

765. अधनस्य अपुत्रस्य मृतस्योपैति यात्रियम् । स आभजेणं बोड सेव तस्य धनं *#: 11 ORE IV. 22; T T pula meran o pinzett TOTCUP : पूर्वपतिकतर्णापाकरणाधिकारी भवस्येव । योषिमाहो पश्रतमणी स्वैरिणीनामन्तिमा गृहाति ** gar forgot HQATTI FANT. ON 9. II. 51. Then I (geral) verses 45-53 are quoted by the Mit.

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explains them differently. According to it the word ‘putra’ (in Yaj. II. 51 ) is. qualified by all the three adjectives via “rikthagrāha’, ‘yoṣidgrāha’ (one who is married) and ‘ananya. sritadravya’(one who has no wife nor child and one who has taken no ancestral wealth, either because he does not desire it or because none exists). Therefore according to it among sons, the son that takes ancestral wealth has to pay the debts of the father, on failure of such a son when some of the sons are married and some are not, the married ones have to repay ancestral debts and lastly when there are no married sons the one that is wifeless, childless and also without wealth has to pay them.

Niksepa ( deposit). The words niksepa, upanidhi and nyāsa are sometimes said to be synonyms (as done by Amara ) 766, though several ancient works define them separately. According to Yaj. II. 65 upanidhi is the deposit of an article enclosed in a box or the like made with another without telling him of the contents of the box. Yaj. II. 67 holds nyāsa and niksepa to be different from upanidhi. Nārada 767 as quoted in the Mit. on Yaj. II. 65 defines upanidhi as the deposit of an article in a sealed receptacle without counting it in the presence of the person to whom it is entrusted and without telling him what the receptacle contains, while a nikṣepa is a deposit entrusted to a man after counting the articles in his presence. Manu VIII, 149 (Vas. 16. 18), Kaut. III. 12 hold niksepa and upa nidhi to be distinct. A verse quoted by Kșirasvāmin on Amara defines nyāsa as an open deposit and niksepa as the delivery of some goods to an artist or crafteman for being worked up or manufactured. Nār. (V. 1 and 5) defines niksepa as the deposit of one’s articles with another through confidence, while upanidhi is defined in the same way as Yāj. II. 65. Viśvarūpa 768 defines nyāsa as an open deposit for safe custody and nikṣepa as delivery of one’s article to another for handing over to a

966. gargarrituta: sferera etorri B ater, Fare tant en F मस्थ… स्यस्प यदर्पितम् । पहपनिधिसः प्रकाश्य स्थापितं तु यत् । निक्षपः शिल्पिहस्तेत Here tirantador afirmat on Arts. :, 767. DUTE ATTE: 1 miqrari Pininfra i pretrageru Find more for IFATL. 00 * II. 65.

. 768. पासो मिर्दिवस्वरूपं पं पक्षमा समर्पितम् । निक्षेपोम्पहरत एष पदापस्मै un forfere i foron 9. II. 69.

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Nyasa, upanidhi and mikpepa

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third. Kat. (592) makes 769 upanidhi a generio term for all bail. ments such as a sold article remaining in the hands of the vendor, & deposit, a pledge, bailment to one for delivery to another, loan of article for temporary use, goods handed over for sale to an agent. The Mit. on Yaj. II. 67 defines nyasa as handing over to some member in the house an article in the absence of the head of the house for delivery to the head of the house and nikṣepa as a deposit in the presence of the deposites himself. The V. P. p. 280 briefly distinguishes the three as noted below.770

Nikṣepa or upanidhi was a bailment made in trust and differed from an ādhi in this that the former was not given by way of security for a debt or for collecting interest but in confidence for safe custody.771 Br. (SBE vol. 33p. 332 verse 2) says that such a deposit is made with another when one is leaving one’s home, or through fear of the king or for depriving one’s kinsmen.772 Manu VIII. 179 (=Nar. V.2) says that one should entrust a deposit to a person who is born of a good family, is well-conducted, knows dharma, speaks the truth, has a large family, is wealthy and straightforward. The person with whom a deposit is made generally receives no personal benefit from it; hence the smrtis (such as Br. in SBE 33 p. 333 verses 6-8) extol the holder 773 of a deposit made in trust to be as meritorious as one who makes gifts of gold or other inferior

769, ऋयः प्रोषितनिक्षित बग्धावाहितयाचितम् । वैश्यवृस्यर्पितं चैव सोर्थस्तूपनिधिः स्मृतः ॥ कात्या. 592 q. by स्मृतिंच. II. p. 3, अपरार्क p. 662, विवादचन्द्र (p. 27. reads क्रयः प्रेषित निक्षेपो).

___770. ग्राहकस्य समक्षं गणयित्वा स्थापितं निक्षेपः । गृहस्वामिमोऽसमक्षं गणितमगणितं वा तस्मिन्नागते एतदातम्यमित्युक्त्वान्यस्य तत्पुत्रादेईस्ते दसंन्यासः । मुद्राष्विन्तं समक्षमगणितं स्थापितमुपनिधिरिति । व्य. प्र. p. 280.

771. पूर्षमुपचयापेक्षया परहस्ते दत्तमुणं तदनपेक्षया रक्षणार्थमेवान्याहस्से द्रव्यमुपनिधि. रिति प्रणादानानन्तरमुपनिधेरपसरः । स.वि. p. 265.

772. स्थानत्यागावाजभयाद दायावानां च पानात् । स्वद्रग्यमार्यतेन्यस्य हस्ते निक्षे पमा तम् ।ह. by सुतिच. II. p, 178; राजचौरारातिभयावायावानां च पशनात् । स्थाप्यतेऽन्यरहे द्रव्य व्यासः स परिकीर्तितः बृह. as q. by य. प्र. p. 279.

773. बदतो पवेत्पुण्य हेमकुप्याम्बरादिकम् । सत्स्यास्पालयतो न्यासं तथैव शरणा गतम् । भर्तृमोहे यथा नार्याः पुंसः पुत्रसाधे । दोषो भवतथा म्यासे भक्षितोपेक्षिते वृणाम् ॥ न्यासयं न ग्रहीयासमाशस्वयशस्करः । गृहीतं पालयेचनासकपाचितमर्पयेत् ॥ बह.. q, by स्पतिथ. II. p. 178, परा. मा. III. p. 281, व्य. प्र. p. 281, अपरार्क P. 662 (first two only).

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metals or clothes and condemn the misappropriation of a deposit or the losing of it through negligence as very sinful. The idea is that no one is bound to accept a deposit, but when a person accepts it, his primary duty is to preserve it with oare and the next duty is to return it at the time agreed or on demand. The obligation arises from the trust reposed in a person. The rights of the bailee are limited as compared to those of the mortgagee or pledgee, but the very fact of his custody in trust clothes him with certain rights. The amount of care required of the depositoe is the same as in the case of an ādhi, viz. he is to take the same care of it as he takes of his own goods and is not liable if the deposit is lost ( along with his own property ) through act of God or the king or is stolen by thieves (Manu VIII. 189, Yāj. II. 66, Nār. V. 9 and 12, Br. in S.B.E. 33 p. 333, verse 10, Kāt. 593 ).774 In the Mșochakatika Cārudatta accepts liability for the loss of the ornaments deposited with him by Vasantasenā, though they were stolen, because of his high sense of chivalry and of his idea that proper care was not taken by him or his friend. But Nār. V. 9 is careful to add that the loss through vis major or through theft must be real and not fraudulently brought about. 775 Nār. V. 6 and Bp. (in SBE 33 p. 334 verge 14 ) state that a deposit may be made in the presence of witnesses or without them, that it should be returned in the same way and condition in which it was made and that if there is a dispute, it may be settled by ordeal ( when there are no witnesses ). 776 The article deposited must be returned in the same condition ( as regards seal &c.) in which it was handed over (Yāj. II. 65 ). It must also be returned to the man himself wbo made the deposit and not to his co-owners ( Manu VIII. 185, Br, in SBE 33 p. 333 verse 9).777 He is estopped

774. ricetta of OSTATCASTra f itnes # faut I. q. by Fair. II. p. 179; fare te para aquesta moaners $mano FHTSTRTTU

O N TAT. Q. by way. II. p. 179, 14. 4. p. 282. 775. Asta: her at et TE: # afi r m a ta in Arte V. 9.

776. रहो दो निधौ यत्र विसंवादः प्रजायते। विभावक सत्र दिव्यनुभयोरपि च स्मृतम् ॥ . q. by 394 p. 664, 14. 4. p. 284.

777. urfa ta fofton ta oraru preto para ra 7.g. by fire. II. p. 181, 017. #T. III. p. 281. turnir VEY Funfaa PICTATE # FT W T regret i fag. II. p. 181. *. 9. 286 remarks on

VIII. 186’ye … maart 24 i foto T TT समिधावितिम निक्षेनुषन्धुभिरभियोक्तग्य इत्यनेन वापभूव।

II )

Return of deposit

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from recognising the title of any one except the depositor, as in section 116 of the Indian Evidence Act. But if the bailor be dead the bailee can return it of his own accord without demand to the co-owners (Manu VIII. 186 = Nār. V. 10). In doing so however he must not return it to one of several heirs, but to all or in the presence of all. The loss of a deposit may be due to the fact that the bailee consumes it by using it, or to the bailee’s negligence or to his ignorance. In these cases the bailee was made to reimburse the bailor for the loss. But Kāt. ( 597 ) 778 makes a difference, viz. when a bailes consumes the deposit by use he should be made to pay the price with interest, when he loses it through negligence he is to pay only the price (but without interest) and if he loses through ignorance, then he is to pay a little less (i. e. less by one-fourth ) than the price. Vide Br. (SBE vol. 33 p. 333 verse 11 ) and Nār. V. 8. If a bailor knowing the proposed bailee to be a careless man deposits his goods with him, the bailee is not liable even if the goods are lost from any cause whatever ( Kāt. 599 ).779 If immediately on demand by the depositor the bailee does not return the thing deposited or it is lost after demand from any cause whatever (including act of God or king ), the bailee’ has to return the thing or the price of the thing (when lost) and also is liable to be fined by the king in the same amount ( Yāj. IL. 66, Nār. V.7). If the bailee makes use of the article bailed without the permission of the bailor, he should be fined by the king and should be made to return the thing bailed with interest ( Yāj. II. 67, Nār. V. 8). In the Rāj. T. ( VIIL 124-157 ) occurs the story of a person who had deposited one lakh of dināras with a merchant and had withdrawn some money from time to time. It further states that, when the balance was demanded, the merchant furnished a statement of accounts giving a list of

Dallee man in the same lost) and

778. म्यासादिक परतण्यं प्रभक्षितमुपेक्षितम् । अज्ञाननाशितं चैव येन दाप्यः स एव तत् ॥ भक्षितं सोदयं वाप्यः समं वाप्य उपेक्षितम् । किंचिन्यून प्रदाप्यः स्याइवष्यमज्ञान

TATTE I rat. 596-597, quoted by TT. 75. III. p. 283 (ascribes 597 to ste), 69. . p. 282 (ascebes 597 to both Fireeya and TTF), mat. On PT II. 67 (597 only). T. q. by TT. 71. III. p. 283 and ty. . p. 282 has a similar verse भेदेनोपेक्षया भ्यासंग्रहीता यदि नाशयेत् । थायमानो न दयावा वाप्यं तरसोदय भवेत् ॥ farmfata uutiretegy FANT. Compare Sec, 161 of the Indian Contract Act..

779. शाला बन्यवियोगं तु दाता यत्र विनिक्षिपेत् । सर्वोपायविनाशेपि ग्रहीता नैव great # . q. by a. II. p. 179, AUT. 7. III. p. 283, ff. t. 89, 69. 4. p. 282.

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fiotitious items of withdrawals for many years with interest and showing that very little of the deposit was left. The king brought home the fraud to the merchant and ordered that the original deposit being used by the merchant should bear interest.

Kat. (506) provides that when a deposit, a balance of interest, purchase price ( not paid though the article be delivered to vendee ), or sale price ( article sold being retained by vendor though price is paid) is not returned or paid when demand is made, it carries interest at 5 per cent (from the date of demand ).780 Manu VIII. 191 (which is almost the same as Nār. V. 13) provides that where a bailes does not return the deposit though demand ed or where a person without making a deposit claims it from a person, both are to be punished as a thief by the king and to be made to pay a fine equal in amount to the price of the bailed article (claimed). The deposit has to be taken back at the proper time by the depositor and the bailee has to avoid returning it at an improper time; if the latter returns at an improper time he should be made to pay a fine double of the value of the thing 781 (Kat. 601 ).

Yaj. II. 67, Nār. V. 14, Br. 782 ( S. B. E. vol. 33 p. 334 verge 15 ) extend these rules about niksepa to other kinds of bail ments viz. to yācitaka ( an article such as an ornament borrowed from a man on a festive occasion), anvāhita ( what is handed over to a third man and is the property of another and has been pledged with a man), nyāsa, upanidhi, filpinyāsu ( giving an article such as gold to an artisan like a goldsmith for preparing an ear-ring or the like), pratinyāsa (mutual deposit). Some of the rules about yācitaka are stated above

780. निक्षेपं वृद्धिशेषं च क्रय विक्रयमेव च। याच्यमान न दद्याद्वर्धते पञ्चकं शतम् ।। TEST. . by Am. on 9. II, 67, 91. 91. III. p. 224, a. . 15. गृहीत्वा विक्रीतमपि वनादि याचितं न ददाति क्रेता वा क्रीवा क्रयसाधनमूल्यं याचितं न ददाति स पशकशतक्रमेण ध िवद्यादित्यर्थ: । वि. र. p. 15.

781. RUTH: TE KTH a tre fa que eu yarat & FT74. 601 q. by * P. 663, a . II, p. 181, 9TT. AT III. p. 286, 24. 4. p. 285 wbich remarks (following Sm. C.). *grafiri हले व्यस्ततबयातीते काले समाज हत्यर्थः तब्रयातीतपिकाले स्वयमेव नायाचितमणीयम् । सम्पाचितमर्पयेदिति हस्पतिस्मरणात् । तजये पर्तमाने स्वयमेवायाचितं दीपमान कालहीनं F9 er stutt et quia quatym: Compare sec, 159-160 of the Indian Contract Act.

.782. strant of FT FUFUA I gue purgat warur -

F.q, by p . II. p. 182, 14. 4. 287.

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(pp. 426-427). Kaut. 783 III. 12 states that a yūcitaka or avakrita (lent on hire ) article should be returned in the same condition in which it was received. If lost through act of God or king or through theft (after taking proper care ) the depositee would not be liable. Kāt. ( 610 ) provides 784 that he who having taken the loan of an article for use does not deliver it even on demand should be restrained (by the owner ) and forcibly made to return it and fined by the king if he does not return it; he should be made to pay the price with interest ( if the thing be lost after demand). If the loan of an article was taken for a specified period or for a particular occasion or purpose and a demand for return be made in the middle and the article is not returned when demanded, the person taking the loan would not be made to pay the price : but if a person who has taken on loan an article does not return it after the period fixed has expired or the purpose is served, the borrower must offer to the owner the price if the article be destroyed or lost and if he does not return even after demand (when the period has ended ) the borrower would have to pay the price with interest.

Kat. (609) states a reasonable counter-exception to the rule in 606 viz. ‘when the owner of an article borrowed by another is likely to sustain loss if the article borrowed were not returned on demand, then the borrower should be made to deliver it even though the time fixed has not ended or the pur pose of the loan was only half fulfilled’.

There are some special rules about $ilpinyāsa also. Kat. ( 603-604) provides that if an artisan or craftsman retains an article delivered to him beyond the time that was settled (or

ET TUTL Treenerius: rafararapat देशकालोपरोधि दत्तं नई विनष्ट वा नाग्याभवेयुः। शेषमुपनिधिना ग्याख्यातम् । अर्थशाम्रIII. 12. On Farfer there is difference between the digests. The firent. defines ‘यकस्य हस्ते मिक्षितं ज्यं तेनाप्यनु पश्चादन्यहस्ते स्वामिने देहीति निहितं तववाहितम् ।। and is supported by percuma (611.9. by p. t. p. 84) saritert o van PR IA I TOTAL T #

##. The TT TT P, 144 quotes the very words of the farat. Fafe. II. p. 182 and 64. 6. p. 287 define TET AS ‘Fortune fier TY C s. frey y TFTT प्रपोजमापेक्षया स्वयेदं मदीयं रक्षणीय भदं त्वदीयं रक्ष्यते इति ग्यस्तस्य ग्रहणम।’ मिंता. on #1. II. 67.

784. चो पाचितकमादाय न दयात्मसियाचितः । स मिगृह्य पलाददाप्यो दण्डपश्चन

a 9 # HITT. 610 q. by u p. 664, fata . II. p. 184, fot. T. p. 92. This shows that he could at once resort to the remedy of my

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agreed) for finishing the work he should be made to pay (its price ) even if the article was lost through act of God, but the artisan shall not be liable to pay the price if the article were to be lost through defects in the article itself; if (however ) what is delivered for being worked or polished is destroyed through the fault of the artisan he should be made to pay the price 785

From the fact that Kāt. 596 (quoted above in n. 778) employs the expression ‘dāpyah sa eva tat’ (he alone who misappro priates or causes loss of a deposit by negligence), the words of Gaut. XII. 39 ( quoted above under adhi) and the fact that nikṣopa is a title distinct from rṇādāna (under which alone the liability of sons, grandsons, and great-grandsons is expressly declared ) it follows that song are not liable for the misappro priation or loss of a deposit or article bailed to their father or other ancestor provided they have not themselves joined or helped in the embezzlement or loss. This is made clear by Haradatta on Gaut. XII. 39, the Vivādacintāmaṇi and the Vivādacandra quoted below 786.

It is interesting to note that Nār. 787 V. 15 places on the same level (as to liability for loss ) with the depositee and the like the man who takes in his charge a minor that has & good deal of wealth i.e. the person undertaking the position of the guardian of a minor’s property has to take as much care of it as of his own and is liable in the same circumstances as a

785. after fra: affrant Furlaparenterata हतोप तत् ॥ ग्यासदोषाविनाशः स्यामिछल्पिनं तम दापयेत् । दापयेच्छिल्पिदोषात्तत्संस्कारार्थ refni 07897. 603-604 g. by . II, p. 183, TTT. #T. III. p. 288, A. . p. 98. The example of 604 given in Sm. C. and others is old clothes delivered to a washerman and torn in the process of cleaning. Compare Sec. 161 of the Contract Act with verse 604.

786. न केवलं पुत्रानेव नाभ्याभवेयुः किं ताहि येषां सकाशे निण्यादयः कृतास्तानपि murtufi on . XII. 39; 4rea: I THI … pry: ETT! एक्कारंण वपराधानन्तर्गततत्पुत्रादिग्परच्छेदः । तथा च नापाभवेयुरित्याधिकारे गौतमः formuar … I parfagref u r f. fo. p. 26; fagittar ayurtat म्यासः पुत्रादिनामदेयः। प्रणातिरिक्तर्णत्वादिति नातिरिक्तपातिभाग्यातिरिक्तानी बलात्कार. WATTS Warente para para pasahero 1 pontearen TTTI

four TI p. 27.

787. marta atare 1984 #HUTT: origet i et for : WAT: # FITT V. 15. Tą IV. 35 defines garot & synonym of a (a minor, up to the 16th year) ‘TEST Tregtare Tatues for meraGaut. XII. 34 and he VIII, 148 employ the word.

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depositee would be for loss of the minor’s property. Vide section 27 of the Guardian and Wards Act ( VIII of 1890 ) for the care required of a guardian 788.

788. The British India Courts have been very much exercised over the question of the liability of ancestral property in the hands of the son for the obligations incurred by the father by his misconduct or embezzlement either as agent or manager for another or as guardian of a minor’s property. It would follow from the passages quoted in n. 786 that ancestral property in the hands of the sons is not liable, acc, to some of our digests, if the father used or lost a deposit or loaned article by his negligence or mismanaged a minor’s property. It is firmly established that the son is not liable for a debt facurred by the father in circumstances which would render the father liable to a criminal prosecution, Vide Toshanpal Singh v. Distriot Judge of Agra 61 I. A. 350. In the latest case on the point, Govindprasad u. Raghunathprasadx41 Bom. L. R. : 589 (F. B.) the exemption is carried further and it is recognized that as to the exemption of the son for ‘avyāu. gharika’ debts of the father, there are many cases which cannot be recon ciled, that it is repugnant to good sense to construe ancient texts in the light of a system of criminal Jurisprudence developed long after and that tho correct rule is to hold that the son can claim immunity when he proves that the debt of the father was of a character which was illegal, dishonest or inmoral (p. 602)’ though difficult cases may arise in the application of this rule. It would be far beyond the scope of this work to cite or discuss the other numerous decisions,OY

be referred to vol. 33 p. 335 personnait, an article ba

toral, a pled it in secreta a sale by