व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

$\left.{l} S. VII. 4-6
M. p. 118 l.82 -p.119 l. 25 \right]$ SALE WITHOUT OWNERSHIP 227
Where the seller pointed out (or produced by the purchaser) has
been defeated in the lawsuit he should pay to the buyer and the king the
price and a fine (respectively) and the thing (in dispute) to the owner.$^1$
Kātyāyana says
If the purchaser cannot point out (or produce) the seller, he should
clear his purchase (as overt) Time for producing the seller should be
given (to the purchaser) according to the extent of the distance. When
he (the buyer) has cleared his purchase (as overt and so legal) he
should not be blamed at all by the king. The claimant$^2$ should first
establish by means of his kinsmen (as witnesses) that the thing (in
dispute) was his Afterwards the buyer should establish in order to
clear himself his purchase (as overt and so bona fide) by (the testimony
of) his kinsmen
*Even if the purchaser proves the purchase (as overt), still the
property does revert to the claimant to whom it belonged (and who had
lost it). So says Manu (VIII 202)
If the seller cannot be produced, the purchaser is let off by the king
without fine and the person claiming the thing as his and lost by him
gets it back when it is established to have been purchased openly
'Anāhārya' (in Manu) means 'not having pointed out (or produced)'
The meaning is 'the thing that is cleared by its being proved that the
purchase was made openly' Kātyāyana says
(A purchaser) who does not produce (or keep present before court)
the seller or who does not establish the purchase (as overt) should be
made to pay to the owner the price (of the article) as claimed in the
plaint and a fine (to the king)
Bṛhaspati (p 335 vv 7-8) says
When a purchase has been made before (i e to the knowledge of) a row
of traders and to the knowledge of the king's officers, but the purchase is
made from one whose habitation is not known or the vendor is dead, the
real owner (of the thing thus sold away without title) will recover his
chattel after paying half the price (to the purchaser), in such a case both
(the real owner and the purchaser) lose a half on account of the popular
usage (on such a point).$^3$
Marīci says
Where the vendor cannot be found because his dwelling place is un-
known the loss should be assigned equally to both the purchaser and the
claimant of the thing lost (by him)

1. Compare Yāj II 170
   2 The 'claimant'— the person called 'nāṣṭika' above
   3 Each is to be blamed to some extent, the purchaser for buying from a man
   whose habitation was unknown to him, the real owner for being careless enough to lose his
   property 'Vyavahārataḥ' may also mean 'in the judicial proceeding' or 'according
   to the rules of law.'

• P. 127 (text