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

S. I. 1 36-38 ] BURDEN OF PROOF 19
M p 14 ll 2-30 ]
The latter half (of the verse) serves as an illustration of the first half.
Yājñavalkya ( II 17 ) says:
When there are witnesses in support of both sides (i. e. both the plain-
tiff and the defendant) the witnesses for the plaintiff (are the means of
proof); when the plaintiff's allegation is brought down (from its position
of having to be proved), then (the witnesses) of the defendant (are to be
heard first)¹
'Pūrvavādinaḥ' means 'of the plaintiff'; 'pūrvapakṣa' means 'the plaint', 'adharī-
bhūte' means 'not requiring to be established because the defendant admits
(the allegations of fact in the plaint) by putting forward a reply of a special
plea'. The mention of witnesses is intended to include (by implication)
other means of proof also. The same author ( Yāj. II 10 ) says:
A surety should be taken from both (plaintiff and defendant) who
would be able to satisfy the final decision²
The word 'kāryanirṇaya' means 'the result of (or carrying out) the judgment'.
Kātyāyana enumerates those who cannot be accepted as sureties:
Neither the master, nor an enemy (of the litigant), nor one authorised
(or employed) by the master, nor one who is under restraint (or in jail),
nor one who is sentenced to pay a fine, never one who is in danger (of life
i. e. seriously ill), nor a coparcener (or heir), nor one who is penniless, nor
one who is banished to another country, nor one appointed to state service, nor
those who have entered the fourth order (i. e. ascetics), nor one unable to
pay (the claim of) the (judgment) creditor and an equal amount of fine
to the king, nor one entirely unknown, should be accepted for the purpose
of a surety.
'Niruddhaḥ' means 'one who is bound by chains and the like'; 'saṁśayas-
thaḥ' means 'one in a difficulty', 'rikthī' means 'one who is entitled to in-
herit the property such as a son, grandson and the like', 'riktaḥ' means 'poor',
'anyatra vāsitaḥ' means 'banished from the country'. Yājñavalkya ( II 52 )
says:

1. This verse is interpreted in two ways. The Mit. explains — When there are wit-
   nesses on both sides, those witnesses, who support the party that says that he was the first
   to enjoy the subject-matter of dispute are to be first examined. When the plaintiff's
   allegations have become weak or of little importance (owing to defendant's having admitted
   the prior state of things but having put forward a subsequent ground in avoidance of the
   prior state of things), the witnesses of the defendant should be examined first. The
   interpretation of Aparārka, the Vyavahāramātṛkā and Nīlakaṇṭha is — in a reply of denial
   it is for the plaintiff (the man who comes to the court first) to cite witnesses (or other evidence)
   for proving his case, but in the case of reply of special plea or former judgment, it is for the
   defendant to adduce his evidence first. The difference turns on the meaning attached to the
   word 'pūrvavādinaḥ'. Vide notes to V. M. pp. 40-41 for detailed explanation.
2. i. e. who would be able to pay up the decretal amount and the fine to be paid
   to the king.

• P. 20 (text),