कल्पान्तरे विश्वासटिप्पन्यः

CHAPTER XVII ASVĀMIVIKRAYA ( sale by one not the owner ).

The different modes of the sources of ownership have already been referred to ( H. of Dh. vol. II. pp. 130 ff) and will be referred to again under dayabhāga. According to Nār. VII. 1 and Br. (SBE vol. 33 p. 335 verse 2) when 789 a person, who holds an open deposit, a sealed deposit, an article bailed for delivery to another, stolen property, an article borrowed for some festival, a pledge, or property lost by a stranger and found ( by him ), sells it in secret ( or behind the back of the owner ) it is to be considered as a sale by one who is not the rightful owner. Vyasa has a similar verse. The word ‘sells’ is only illustrative and includes gifts and pledges. Similarly as most sales by one not the owner are clandestinely brought about, Bs. employs the words in secret’ but even if the sale is effected openly the same consequences may follow. The same rules will apply to an article lost by the owner and found by a stranger. Kat. ( 612 ) provides 790 that a sale, gift, or pledge, made by one who is not the owner, should be rescinded ( by the king or judge), Manu VIII. 199 and Nar. (q. by Sm. C. II. p. 213, V. P. p. 291 ) and others say the same thing. Yāj. II. 168, Nār. VII. 2 provide that the owner is entitled to recover his property from the person that purchases from one who is not the owner. If the buyer purchases an article not in the open market, then he is liable for punishment; if he purchases from one who could have no means of posgessing the thing sold (such as a slave without the master’s consent) or for a very inadequate price or at a very unusual hour (at midnight or

निक्षित वा परमय नष्टं लगभयापहत्य वााविक्रीयतेऽसमक्षं यदिशेयोऽस्वामिविक्रयः। FICE VII. 1; fata

l gaty * farantera att traum.q. by FeatII p. 213 44. . p. 290; METTA FAT चाम्पत्य पद्धनम् । विक्रीयते स्वास्यभावे स शेयोऽस्वामिविक्रयः । ग्यास q. by व्य. म. p. 195, 14. 4. p. 290.

ATAT ETWAY nafari TT. 612 q. by the font. on Or. II. 168, 901. T. p. 291, fa. t. p. 104. The .. p. 291 takes 37 far as one word ‘WATAHT 6 FT I STATO Carnutit HTCT

ut , while m. A. p. 195 says WAT is a separate word and an adverb. The latter had to explain in this way in order to directly connect the absence of ownership with all the three kinds of transactions.

MI)

Purchase froin one not the owner

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the like) or from bad characters then he is to be punished as a thief ( Yāj. II. 168, Viṣṇu Dh, S. V. 166, Nār. VII. 3, Manu VIII. 202, Br, in SBE vol. 33 p. 336 verse 11). Such a sale is a fraudulent one. If the buyer purchases (through ignorance ) in market overt from one who is not the owner, he incurs no blame ( no punishment), but he may have to hand over the article to the real owner ( Viṣṇu Dh. 8. V 164-166 ).791 The purchaser from one not the real owner can free himself by producing the vendor (called inūla in Manu VIII. 202, Bṛ. and Kat. ) and should not attempt to conceal from whom he came by the thing, otherwise he would be liable to be punished equally with the vendor as a thief (Nar. VII. 4). Br. ( SBE 33 p. 335 versd 3), Manu VIII. 201 and Yāj. II. 170 say that when the vendor has been produced by the vondee, then the latter is not to be proceeded against, but the vendor has to litigate with the real owner who has lost his property and when the vendor loses the suit he has to pay the price to the buyer and a fine to the king and the owner gets his property back. 792 If the vendor has gone abroad adequate time should be granted to the purchaser to produce him ( Kāt. 615). The purchaser in order to escape blame (punishment) has to produce the vendor and if that cannot be done owing to the vendor’s absence he has to prove that he, purchased 793 openly (Bp. in SBE 33 p. 335 v. 4, Manu VIII. 202, Kāt. 615, 618-619). If he cannot do any of these two, then the purchaser would be liable to pay the price to the real owner as claimed and a fine to the king. Manu VIII. 198 prescribes that one who sells without being the owner but being a member of the owner’s family should be fined 600 paṇas, while a vendor unconnected with the real owner’s family should be dealt with as a thief. The same rule applies to a

3 a: HATS 9: mitofron as negrana: 1 treft यात् । यद्यप्रकाशं हीनमूल्यं च क्रीणीयात्तदा क्रेता विक्रेता च चोरवास्यौ । विष्णुधर्मसूत्र V. 164-166; 3nr PEUTATI CON UTAHAT ara i stari grad rarte gara: I . q. by v. 4. p. 291, P. T. 107, otr. A. III. 293. .
मूले समाहते क्रेता नाभियोज्यः कथंचन । मूलेन सह वादस्तु भाष्टिकस्य विधी.

e. g. by FHENT. On a II. 170, while 90. AT. III. 295 and Fyfan. II. p. 215 attribute it to ग्यास. विक्रेता दर्शितो यत्रहीयते व्यवहारतः। क्रेत्रे राज्ञे मूल्यदण्डौ प्रद UTITTAR q. by 9TT. AT. III. p. 295. f . II. p. 215.

1ret 2T ** gute To Fai 1979qOU14 H OT # Y. q. by faar. on 9. II. 170 (reads 4 TETTU), so

p. 776. f. 6 p. 101; SHETATM nu faraitrea rapinat of वक्तव्यः स किंचन अनुपस्थापयन्मूलं कसं बाप्यपिशोधयन् । यथाभियोग धनिने धनं दाप्यो PÅ TR:# 7641. 618-619 q. by Firs. on 71. II, 170, . . pp. 106, 108, 17. #. Pp. 196-197.

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( Vol.

vendor selling another’s article through ignorance or mistake and one doing so with full knowledge. The person who has lost a chattel and claims it from the finder is described as nāṣtika 74 in Kauṭ. III. 16, Manu VIII. 202, Kāt. ( 614) and elsewhere, the word being derived from naṣta ( what is lost). The idea is that openly purchasing an article in the presence of a number of people for an adequate price negatives fraudulent intent and leads to the inference of a purchase in good faith and such a purchaser even though he may have to part with the chattel to the real owner when the latter proves his title, incurs no blame and is entitled to recover from the vendor, if he has to surrender the article, the price paid by him. When a person claims & lost article as his he has first to prove his title and possession by evidence (such as that of his kinsmen or a document &c. ) and that he had not sold or donated or abandoned it; 95 after he has proved his title the purchaser is called upon to prove his purchase as honest by evidence i. e. by producing the vendor or by showing that he purchased openly and for adequate price (Kāt. 613, Yaj. II. 170). When this is done the purchaser escapes blame but has to surrender the article to the true owner. Kat. (616 ) adds 796 that in the case of ‘agvāmi-vikraya’ no other means of proof whether divine or human (except the evidence of witnesses such as kinsmen) is declared to be proper. Acc. to the V. P. p. 293 other evidence and even ordeals may be admissi ble in sale without ownership, but the Sm. O. p. 216 and the Madanaratna say that on account of the express words of Kat. this is not possible. If the owner who alleges the loss of an article fails to prove his title and prior possession he has to pay a fine to the king equal to fth of the price of the article, Kāt. ( 620 ) and Kaut. (.III. 16 ) state that on failure to prove his title the person claiming 797 the article as his should be fined as a thief, in order to deter (others) from taking undue advantage (i. e. preferring false claims ). Kaut, 798 III. 16 and Yaj. II. 169

He at: 1 PEAU for a recretariese street: 1 मह प्रयोजनमस्योति वा । मेधा. on मनु VIII. 202. The sutras referred to are पाणिनि V, 2. 115, V. 4. 38 and V. 1. 109.
नाष्टिकरत प्रकुर्वीत तन ज्ञातुभिः स्वकम् । अवत्तत्यक्तविक्रीतं कृत्वा स्वं लभते UTIFTET 614 4. by Hart p. 777, 14. t. p. 104. H. f. p. 306.

__796. प्रकाशचक्रय कुर्यात्सायभिज्ञातिभिः स्वः । न तत्राम्या क्रिया प्रोक्ता दैविकी

# 247. 616 q. by u p. 717, 97. T. 296. a. I. 106. 797. f * * got marfafvalfitant i morfofageait u ne fatal 241. 620 q. by spare p. 777, f. . p. 105, 911. AT. III. p. 297.

TETTUATAN FTAT AF Un aneta r restaurant opere tante metai phu III. 16.

III ]

Rights of the real owner

465

provide that when the real owner finds his lost article in the hands of a stranger he should get him apprehended by the royal officers (such as chauroddharanika, acc. to Mit. ), but that if the owner thinks that much time will be lost or distance will have to be traversed ( for going to officers ) he should himself seize the person and bring him before the court. The Mit. explains that the buyer should have the seller arrested and, if the seller is dead or gone abroad, that he should hand over the article to

· the real owner. Where a purchase has been made in the midst of a row of traders to the knowledge of the king’s officers, but from a vendor whose habitation was unknown or where ( after the purchase ) the vendor dies, the real owner (of the thing sold by one not the owner) will recover his own property after paying half the price to the purchaser, since the rule of justice in such a case so requires, because to purchase from one ( whose habitation is ) not known is a fault (in the purchaser ) and not taking proper care (of one’s goods ) is also a fault in the real owner (Bṛ. in S. B. E. vol. 33 pp. 335-36 verses 7-9 or Kāt. 621-623 )799, Marici (q. by Aparārka p. 775, Sm. C. II. p. 217 ) has similar provisions. Br. (S. B, E. vol. 33 p. 335 verse 800 6) provides that in a suit where there is no evidence the king shall take into consideration the character of the litigants and give a decision according as the credibility of the parties is equal, greater or less.

As regards articles lost and found by the king’s officers, vide above ( pp. 175-176 ).

वणिग्वीधीपरिगत विज्ञातं राजपूरुषैः अविज्ञाताश्रयात् क्रीतं विक्रेता यत्र वा मृतः। स्वामी दयार्धमूल्यं तु मगृहीत स्वकं धनम् । अर्ध योरपाहतं तत्र स्यादन्यवहारतः ॥ अविज्ञात

TETTAUT YFOOTSHTE I GUY WATCe a gu # T., acc, to 379 p. 775, n on fur. VIII: 202 (the first two only); and meat. acc. to fag. II. pp. 216–217, 07. #. III. pp. 297 and ‘300, 19. 4. pp. 295-296. Law helps the vigilant. The rules under “asvāmivikraya’ are based on the doctrine that no one can confer a better title to the goods sold than he himself bas (vide section 27 of the Indian Sale of Goods Act IX of 1930). The verses recognise an exception in cases where both purchaser and the real owner are equally at fault. .. -800. प्रमाणहीनबादेतु पुरुषापेक्षया सपः । समन्यूनाधिकवेन स्वयं कुर्यादिमिर्णयम् ।।

.q. by Fit II. p. 216, f. E. p. 108.