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

S. iv. 11. 3-5,
'M. p. 99 l. 29-p. 100 l. 18 ] EXCLUSION FROM INHERITANCE 193
(in Manu) means 'devoid of the sense of smell and the like.' Nārada
(p. 194 vv. 21-22) says:
One hostile to one's father, a patita, an impotent person, one who goes
to another continent (from India in a vessel). these even though they be
aurasa (sons of the body) should not get a share; how can ksetrāja
sons (suffering from these defects) get a share? Persons afflicted with
long-standing and severely painful diseases, persons who are either idiots,
insane or lame — these must be maintained by the family, but their sons
are entitled to a share
'Apayātritaḥ'¹ according to Madana means 'one who is excommunicated
by his kinsmen' on account of his being guilty of high treason or the like
by the method of breaking a water-pot or the like, but it is better to take
the word to mean 'one who goes across the sea in a vessel or the like to
another continent' (than Jambudvīpa, India) for trade; because contact
with such a person is prohibited in the Kali age by the text 'a twice-born
person who crosses the ocean in a vessel is not to have intercourse (with his
castemen) even though he be purified' (by appropriate prāyaścittas) and
because breaking of a water jar and excommunication are not prescribed in
the case of high treason. Śaṅkha-Likhita say 'inheritance, piṇḍa (ball
of rice) and water are withheld (lit. cease) from the apayātrita (one
who goes on a sea voyage to a distant land)'. Vasiṣṭha says (17. 52)
'those who have betaken to another order of life (other than the house-
holder's order) are excluded from a share' This means that the perpe-
tual student, the forest hermit and the yati (are excluded from a share).²
1 There are numerous readings for this word, such as 'apapātrikaḥ', 'aupapātikaḥ',
'avapātitaḥ' &c Vide my notes to V. M pp 305-306 for these and their explanations
and Dal Singh v. Musammat Dini 32 All 155 at p. 158 where most of these are discussed.
Nīlakaṇṭha is wrong in saying that breaking of a water jar is not prescribed for high treason.
Gautama 20. 1-4 does prescribe 'ghaṭasphoṭa' in such a case. Compare Manu XI 183-184
and Yāj. III. 295 also. The half verse a twice-born person &c.' is quoted by Hemādri
from the Ādityapurāṇa in his list of acts forbidden in the Kali age. Vide p 104 above about
secondary sons being forbidden in the Kali age There is a sharp conflict about the mean-
ing of 'nauyātuḥ' which, according to strict rules of grammar, would mean 'who habit-
ually crosses the sea in a vessel' (and not one who makes a casual voyage). Vide my notes
to V. M. p. 306. The verse of Nārada 'persons afflicted &c.' is quoted in 1 Bom. 177 at
p. 182.
2. An ordinary student (called upakurvāṇa) intends to become a householder and
so he is not excluded. 'Yati' means a sannyāsin, an ascetic who has given up worldly ties.
In Somasundaram v. Vaithilinga 40 Mad 846 it was held that the texts as to disinheri-
tance applicable to yatis or sannyāsins did not apply to a śūdra ascetic unless a usage
to that effect was established. Vide also 46 All. 616, 39 Bom. 168 at p 174, 52 All. 789.
In 54 Mad. 576 at p. 581 reliance is placed on the Mayūkha which quotes Śaṅkha-Likhita
that the heritable right of him who has been formally degraded (apapātrita is the reading
accepted) and his competence to offer oblations of food and libations of water are extinct.
V. M. 25

194 VYAVAHĀRAMAYŪKHA [ S. IV 11. 5-8
[ M. p. 100 L. 19-p. 101 L. 4
Kātyāyana says
The son of a woman married in the wrong order and one who is born
of a man of the same gotra (as the man's wife) and one who is an
apostate from the order of ascetics—these never obtain the inheritance¹
*'Sagotrāt (in Kātyāyana) means one born from a woman married by
one who has the same gotra as her (i e. as her father's) Akramoḍhāsutaḥ
means according to some kṣetraja or kānīna son and the like but it is more
proper to say that when a younger daughter gets married while her elder
sister is still unmarried, they both are then designated by the word akra-
moḍhā² The same author (Kātyāyana) declares that if he (the son of an
akramoḍhā) be of the same class (varṇa) as his father, he was entitled
to a share
The son of a woman married in the wrong order takes the inheritance
when he belongs to the same class as his father and so does a son born
of a woman who is not of the same class (as her husband) but who is
married in the proper order³
A son born of a woman who is married in the reverse order is not
entitled to a share though he be procreated by the husband himself⁴ And so
the same author (i e Kātyāyana) says
The son of a woman married in the reverse order (of classes) is not
entitled to inherit (to his father) It is the opinion (of sages) that
food and raiment should be given (to such a son) till his end by his
kinsmen.
When there are other sons endowed with good qualities Manu
(IX 214) declares that the vicious son is not entitled to a share (of the
inheritance)
All those brothers who are addicted to vicious acts are not entitled
to the estate.⁵

1. Vide my notes to V M. pp. 307-308 and Kāt verse 862 for the several explanations
   of this verse. A younger brother or sister marrying before an elder one was guilty of the sin
   of parivedana The younger one so marrying was called parivettṛ and the elder one so
   passed over was called parivitta or parivinna These two as well as the giver of the
   girl and the priest incurred grave sin Vide Baud. Dh. S. II. 1 39 and Manu III. 172
   There is another meaning of akramoḍhā In ancient times a person was first to marry
   a girl of his own caste and then he could marry another of a caste lower than his own
   (Manu III 12). But if a brāhmaṇa married first a kṣatriya girl and then a brāhmaṇa
   girl, both became akramoḍhā
2. For explanation of kṣetraja and kānīna vide p. 103 above
3. The last half may be illustrated as follows — If a kṣatriya first married a girl of
   his own class and then married a vaiśya girl, the son of the latter would take a share as
   he would be born of a woman married in the proper order though his mother is of different
   class from her husband's. Vide Yāj. II 125.
4. If a kṣatriya married a brāhmaṇa girl and had a son from her this would be the
   son of a pratiloma union and so he would not be entitled to inherit to his kṣatriya father
5. Compare Gautama 28. 38 and Āp Dh. S. II. 6. 14 14-15.

• P 101 (text).

S. IV. 11. 8-10 ] EXCLUSION FROM INHERITANCE 195
M. p. 101 ll. 4-27 ]
Bṛhaspati (p. 376 vv. 42-43) says ·
Though 'born of a woman equal in class (to her husband) a son
destitute of good qualities does not deserve the paternal wealth; it is
ordained that it (paternal wealth) belongs to those (sons) who are
learned in the Vedas and who offer piṇḍas to the deceased. A son
rescues his father from highest and lowest debts; hence no purpose (use)
is served by a son who is the reverse of this ¹
These persons excluded from a share (or inheritance) must be maintained
during their life by those who take the inheritance; since Manu (IX.
202) says :
‘ But it is just that the wise should give, according to their ability,
food and raiment till the end (of their lives) even to all (who are
excluded); for he who does not give (these) would become patita
(sinful and outcast)
*‘Atyantam’ (in Manu) means ‘as long as they (excluded ones) live’. And
to the same effect is the text of Yājñavalkya (II 140) cited already ‘they are
not entitled to a share and are to be maintained’. But those who have
betaken themselves to another order (other than that of householder),
those who are outcasts and the sons of outcasts are not entitled to be main-
tained. And to the same effect is Vasiṣṭha (17. 52-54) ‘persons who
have entered into another order (āśrama) are not entitled to a share;
and so are not entitled the impotent, the lunatic and the patita (out-
cast); maintenance (must be given) to the impotent and the lunatic.’
Here the express mention of two as regards maintenance serves to exclude
the other two ² Devala says ·
³‘When the father is dead, the impotent, the leper, the lunatic, the
idiot, the blind, an outcast and his offspring, a person wearing a heretical
sect mark — these are not entitled to a share of the heritage; to these,
1 Mandlik translates ‘a son relieves his father from creditors and debtors’. But this
is doubtful. No ancient writer, so far as I know, gives credit to a son as the saviour of
his father from the latter’s debtors. Manu IX. 138 says that the son saves the father
from the hell called ‘put’. The higher debts are those that are owed to the gods, manes
and sages (as said in the Taittirīyasaṁhitā VI. 8. 10. 5) and the lower debts are the
debts owed to creditors The Aitareya-brāhmaṇa (VII. 13) says that when a man sees a
son born to him he pays back a debt.
2. Vasiṣṭha mentions four, viz ‘āśramāntaragata’, ‘klība’, ‘unmatta’ and ‘patita’
as ‘anams'a’ and allows maintenance only to the impotent and the lunatic. This means
that ‘āśramāntargata’ and ‘patita’ are not entitled even to maintenance. As to ‘pari-
saṁkhyā’ vide p. 106 n 2 above.
3. This text of Devala is quoted in 1'Bom, 177 at p 183 ‘When the father is dead’
—this is only illustrative. Even when the father is living and he makes a partition
during his lifetime or sons come to a partition during his lifetime, the persons enumerated
would be excluded.

• P. 165 (text),

196 VYAVAHĀRAMAYŪKHA [S. IV 11 10-12 / M. p. 101 L 27 p. 102 L2
except the outcast boiled rice (i e food) and raiment are to be given.
'Liṅgī' (in Devala) means one who wears a forbidden sign. ¹ Baudhāyana
says (II. 2 38 41) 'They (coheirs) should support with food and clothes
those who are beyond (i e incapable of) transacting business and those
who are blind idiots, one impotent one addicted to vice, one afflicted with
disease and those that engage in prohibited actions except the patita and
his issue. ² Madana and others say that one who is an apostate from the
order of asceticism and his sons also are not to be maintained
The sons however of those excluded from a share (or inheritance)
if they are blameless (free from defect &c.) do get a share because
Viṣṇu (15. 84-88) says the aurasa (legitimate) sons of these alone
are entitled to take a share but the sons of the patita born after the
commission of the sinful act (which causes the bar of the exclusion) do
not (take a share) and so also those who are born of women of higher
caste (than their husbands) do not take a share nor do the sons (of
these latter) take a share even in the wealth of their paternal grandfather⁴
and because Yājñavalkya (II 141) says 'the aurasa (legitimate) and
kṣetraja sons of these if free from blame, are entitled to a share'⁵
*Yājñavalkya states (II. 141 142) a special rule concerning the daughters
and wives of these (excluded persons)

1. The Dāyabhāga and Vīr explain liṅgī as pravrajita (the sannyāsin) the
   explanation of Nīlakaṇṭha is supported by Medhātithi's comment on Manu IV 30.
2. The text of Baudhāyana is quoted in 1 Bom. 177 at p 183. Atītavyavahārān
   may also mean those who transgress the ordinary rules of conduct.
3. In Bapuji v Panduranga 6 Bom. 616 it is said at p. 621 Admittedly not one
   of the books referred to lays down anything with respect to the rights of inheritance of
   after-born qualified sons of excluded persons where an estate has already vested in a member
   of the family by right of survivorship. In Krishna v Sami 9 Mad. 64 (F. B.) it was
   held that the sons of a deaf and dumb member of an undivided Hindu family are entitled
   to a share in the lifetime of their father notwithstanding the fact that they were born
   after the death of their grandfather. Vide Laman v Krishnaji 21 Bom. L. R. 427 for
   the adopted son of a patita succeeding to his father's separate property though the adoption
   took place after the father became patita. Vide Paradesva v Venkatesh 31 Bom 4...
   4 The force of api in pitāmahasyarthe is as follows. The general rule is
   stated to be that the blameless sons of those excluded take a share. An exception to
   this is the son of a patita born after the man became patita and there is a further except-
   ion we saw above from Kātyāyana's text that the son of a pratiloma union does not
   inherit to his father the blameless son of the son of a pratiloma union would not succeed
   to the wealth of his grandfather i. e. of him who married a woman of a higher caste than
   his own.
4. The impotent particularly may have a kṣetraja son. Vide Manu IX. 203. The
   Mit. says that the express mention of aurasa and kṣetraja shows that other kinds of sons
   (of these excluded from inheritance) are not entitled to a share or to inherit. The Sm.
   C. says that as kṣetraja is forbidden in the Kali age the text of Yāj. applies only to the
   Dvāpara age.
   P 106 (text)

$\left.\begin{matrix}S. IV, 11, 12-V, 1, 1
M. p. 102-11. 8-23\end{matrix}\quad\right]$ EXCLUSION FROM INHERITANCE 197
The daughters of these (excluded persons) should be maintained
till they are married and their sonless wives leading a virtuous life
should also be maintained; but the unchaste ones should be expelled
and so also those who are hostile.
According to Madana and others in the case of unchastity, they (the
wives of excluded persons) should be expelled and not fed, when they
are hostile they should be (only) expelled but maintenance must be
given to them.$^{1}$
(Here) ends the (section on) partition of heritage.
Now begins (the section on) recovery of debts.$^{2}$
Hereon Bṛhaspati (p 319 v 1) states the procedure to be followed
by the creditor in lending money:
A creditor should always advance a loan after securing a pledge of
adequate value or a hypothecation or substantial sureties or have it
consigned to writing or before witnesses.$^{3}$
'Bandha' means a restrictive agreement (by the debtor) in the
form 'so long as the debt due to you is not discharged, I shall not enter
into a transaction of gift, sale or mortgage of this house, field or other thing.'
Lagnaka' means 'a surety'. The same author (Br p 320 v. 2) says.
*Since it (loan) is recovered without any qualm four times or eight
times (as much) from a wretched man who is sinking (distressed),
it is therefore known as kusīda (usury)$^{4}$

1. The Mit. says that merely because they are hostile they should not be deprived
   of maintenance if they are chaste The V. R remarks that 'pratīkūla' does not mean
   'quarrelsome' but connotes hostility (such as attempt to poison &c.). Vide Valu v.
   Ganga 7 Bom 84 at p. 88 where the verse of Hārita together with the comment of Mayūkha
   is quoted and also Ilata Shavitri v. Ilata Narayanan 1 Mad H. C. R. 372 where the
   Mayūkha is quoted in a note.
   2 There are, according to Nārada, seven heads to be discussed under the title of
   'recovery of debts', two from creditor's point of view (viz the method of lending and the
   manner of recovering) and five from the debtor's point of view (viz what debts must be
   paid, what debts need not be paid, who is liable to pay debts, at what time, and in what
   manner)
2. Vide notes to V. M pp 318-319 for the various definitions of ādhi and bandha.
   The two words are often used as synonyms Bṛhaspati himself defines 'ādhi' as bandha
   later on (under 'pledge'). 'Ādhi' is here distinguished from 'bandha' and means
   'a pledge or mortgage with possession' while 'bandha' seems to be a simple mortgage
   or hypothecation, where the creditor is not given possession and the thing remains in the
   possession of the debtor or a common friend. Vide Mit on Yāj. II. 59.
3. This gives an etymology of 'kusīda' from 'ku' (bad) and 'sīda'.

• P. 167 (text)

198 VYAVAHĀRAMAYŪKHA [ S. V 1. 2-4
[ M. p. 107 l. 30-p. 108 l. 12
Kātyāyana says
That rate of interest which the debtor promised in addition (to the
rate allowed by śāstra) and which was promised in a time of diffi-
culty (or distress) must always be given, it is termed kāritā that
is known as śikhā-vṛddhi (interest growing like the top-knot of hair
on the head) when (the debtor) pays (interest) every time. ¹
Pratikālam (in Kāt) means from day to day from month to
month and from year to year Yājñavalkya (II 37) says
An eightieth part (of the principal) is the interest every month
when (a loan is advanced) on a pledge otherwise (when money is
lent without a pledge) interest may be two three four or five percent
(every month) in the order of the (four) classes (brāhmaṇa kṣatriya &c) ²
'Anyathā (in Yāj.) means when there is no pledge Vyāsa says
Monthly interest is declared to be an eightieth part (of the principal)
when there is a pledge, sixtieth part when there is a surety (but no
pledge) and two per cent when there is no pledge nor surety
Yājñavalkya (II 38) says
(Borrowers) who travel through forest (for trade &c) should pay
ten per cent and those who travel by sea twenty per cent (per month)
Dadyuḥ is to be understood as connected (with this verse) from
the following clause (in Yāj)
All of whatever class should pay the interest stipulated by themselves
Viṣṇu (Dh. S VI 40) says "
He who having taken a loan of whatever kind with the promise 'I
shall return an equal amount tomorrow does not afterwards return
it through greed, would have to pay interest from that day ³
Kātyāyana declares when interest can be charged on a loan (of an
article for use)-

1. Interest is either kṛta (agreed upon between the parties) or akṛta (not so
   agreed) According to Gautama XII 31-32 and Bṛ p. 32-vv 5-11 kṛta is of six kinds
   kāyikā, kālikā, cakravṛddhi kāritā, śikhāvṛddhi and bhogalābha (Gautama calls his sixth
   variety ādhibhoga). Manu VIII. 153 and Nār (p. 66 vv 102-104) mention the first four
   out of the above six. Vide notes to V M pp. 313-314 for the explanation of all the six.
2. As the eightieth part was to be given every month, the interest comes to 15
   per cent per annum. When there was no pledge, a brāhmaṇa debtor had to give 24 per
   cent per annum, a kṣatriya 36 per cent per annum and so on. Manu VIII 140
   ascribes the rule about eightieth part to Vasiṣṭha. Vide Manu VIII 142 which pre-
   scribes two, three four and five per cent just as Yāj. does.
3. These and the following verses contain cases where no interest is originally sti
   pulated, but where the law allowed interest to be charged in certain circumstances.
   P 108 (text)

S. V. 1. 4 5 ] DEBTS 199
M. p. 103 ll. 18-31 ]
When ¹a person takes a loan for use (yācitaka) and goes to an-
other country without returning it, that loan begins to carry interest
after a year (from the date of loan). He who after borrowing money
goes to another country without returning it even though he be re-
quested (to repay), that loan carries interest after three months
(from demand) When a person does not return (a loan) at any
time even though he be in the country and even when he is requested
to return it, (the king) should make him pay interest from that day
(i. e day of demand) though none was stipulated and though he is unwill-
ing to pay
Nārada (p. 68 v. 108) says:
There shall be no interest in any case where things are lent through
friendship, in the absence of a stipulation (to that effect) but even
when there is no stipulation such a loan carries interest after half
a year.
Kātyāyana says
What² has been lent through friendship carries no interest as long
as it is not demanded back; but if it be not returned even though it
is demanded back, it bears interest at (the rate of) five percent (per
month). If* a man, after buying a marketable commodity, goes to
another country without paying the price, that money (price) will
earn interest after three ṛtus (i e after six months).³ A deposit, the
balance of interest, purchase and sale--these bear interest at five percent
(per month) if they are not returned (or paid) when demand is made ⁴
Nārada (p. 33 v. 36) says ·
The price of a commodity (sold), wages, deposit, a fine that is or-
dained (inflicted), a promised gift without consideration, a stake won
in gambling by means of dice-these do not carry interest without an
express agreement.⁵

1. Vide notes to Kātyāyana vv 502-504. The first verse of Kāt. applies when the
   lender makes no request for return, the second where he makes a request The three
   verses are quoted in Saundanappa v. Shibasawa 31 Bom 354 at pp 361--362
2. This verse is referred to in 31 Bom 354 at p. 361 and it is said (at p. 364) that
   it was an incident annexed to every contract of debt by the Hindu law that interest
   though not stipulated for should run on it in the event of non-payment after demand
   from the date of such demand
3. This applies where there is no demand for the money.
4. 'Purchase and sale'--If a chattel is purchased and the purchase money is not
   paid even though demanded, this verse would apply and interest would run from the
   date of demand.
5. 'A promised gift'--a gift to dancers or bards is called vṛthā dāna. This verse
   is apparently in conflict with Kātyāyana's verse 'a deposit' &c. so far as deposit and
   the price of goods are concerned. But Nārada's verse applies where there is no demand
   and Kātyāyana's verse applies where there is a demand.

• P. 169 (text)

200 VYAVAHĀRAMAYŪKHA [ B. V 1. 5-7
M. p.103 l.31-p.104 l. 21
Ākṣika ( in Nārada ) means relating to playing with dice , avira-
kṣitaḥ means not specially agreed upon Yājñavalkya ( II 44 ) says ;
If ( a creditor ) does not receive back his own money given as a
loan when it is tendered ( by the debtor ) it carries no interest from
that ( day ) if it be deposited with a third person '
Bṛhaspati ( p 322 v 13 ) says
On gold ( and silver ) the interest ( allowed by śāstra ) is as much
as ( to make the debt ) double, on clothes and the baser metals treble
on grain, quadruple so also on vegetable products beasts of burden
and wool ( or hair ).
Śadaḥ ( in Bṛhaspati ) means flowers roots fruits and the
like vāhyaḥ means bullocks and the like Lavaḥ means the wool
of sheep and hair of camari deer and the like. *As to what Manu
( VIII 151 ) says interest on grain vegetable products, beasts of
burden and on hair does not exceed five times ( the principal ) its purport
is to prohibit taking six times as much ( as the principal ) or more ¹
Kātyāyana says
The interest stops at double ( the principal ) in the case of jewels,
pearls, corals gold and silver and in the case of fruits silken cloth
and wool.
Kaiṭam ( in Kāt ) means produced from a kīṭa ( insect ) such as
the cloth called paṭṭa, a dukūla and tasari ( which are several varieties of
silk cloth ) Vasiṣṭha says
Interest on copper iron bell metal, brass, tin and lead is threefold if the
debt be of long standing
Vyāsa says
( Maximum ) interest in the case of vegetables cotton and seeds is
declared to be six fold '
Kātyāyana says
For all sorts of oils for liquors and ghee the ( maximum recoverable
with ) interest should be known as eightfold and also in the case of raw
sugar and salt
Viṣṇu ( Dh. S. VI 11 15 ) says In the case of gold ( the maximum
recoverable with ) interest is two-fold on cloth treble on grain quadruple
on fluids eight fold in the case of female slaves and beasts the offspring ( is
the interest ) ² Flowers roots and fruits and what is sold by ( being
weighed in a ) balance—in these ( the increase by interest ) is eight-fold
( these are Vasiṣṭha II 46 17 ). Nārada ( p. 67 10 ) says
1 Compare Gautama XII.33 with Manu VIII 151 Yāj II.39 agrees with Bṛhaspati
For various explanations of the text of Manu vide notes to V M p 517
2 It is possible to take striṣu paśu to mean female beasts (such as a she-
buffalo).
P. 170 (text).

S. V. 1. 7 ] DEBTS 201
M. p. 104 ll. 24-32 ]
This* is declared to be the universal (all-embracing) rule as to
interest on loans; but the established usage of each country may be
different and may prevail according to the nature of the debt$^1$
'Sārvabhaumaḥ' means 'universal' These rules about (the maxi-
mum recoverable) being double and the like (of the principal) hold good
only when there is a single transaction. But if a fresh transaction be made
at a different time (from the original date) or with a different person
(from the original debtor) or by deductions or additions to the debt already
due, then the (maximum recoverable) may be more than the highest
interest (allowed by the śāstra at one time)$^2$ And so also Manu (VIII.
151) says :
Interest in money-lending business does not go beyond double, when

1. This verse and the following passage of the Mayūkha are quoted in 24 Bom. 305
   at p. 308.
2. The sages are not agreed as to the rate of interest on various articles and so
   Nārada observes that there are local usages But all are agreed as to gold and silver
   or money that the interest recoverable at one time in a lump cannot exceed the principal.
   This is called the rule of dāmdupat. The principal text is that of Manu (VIII. 151)
   which is similar to Gautama XII. 28. Nīlakaṇṭha very laconically puts several propositions
   about this rule. The principal rules about dāmdupat laid down by the Mit and the
   Mayūkha are four. They are (I) if money is lent only once to a man and interest is
   recovered only once in a lump then the maximum amount recoverable (together with
   interest) at one time cannot be more than double the sum lent, whatever the rate of inter-
   est may be and whatever the length of time may be, (II) if interest is received every
   month or every year and not in a lump at one time, then the total interest received
   may be so much that the creditor may have recovered more than double the sum lent,
   (III) if after the interest has accumulated for some time, there is a fresh agreement
   (prayogāntara) with the same debtor whereby the sum lent together with interest due
   is taken as the principal and fresh interest is agreed to be paid on the sum so arrived at,
   then the total recoverable after this second agreement may exceed more than double the
   sum originally lent (this is kālāntarena prayogāntare of the Mayūkha), (IV) if after the sum
   due to the creditor has become double of the sum lent, the creditor accepts another man
   as the debtor (who takes the liability upon himself), then the creditor may recover from
   the substituted debtor after the lapse of years a sum which may be more than double the
   sum originally lent by the creditor (this is 'puruṣāntarena prayogāntare' of the Mayūkha).
   It is not necessary in cases falling under the third rule that the whole sum due (principal
   and interest) should be capitalized and again put to interest, it may be that the creditor
   makes a deduction (reka) from the sum due by way of concession or he may make an
   addition (seka) by a further cash payment and then put the whole to interest (this is
   'tatrava rekasekādinā vā prayogāntare' of the Mayūkha) Vide the Mit on Yāj II. 39
   There are numerous cases explaining the limits of the rule of dāmdupat. Vide 1 Bom 73,
   3 Bom 131, 20 Bom. 721 (F. B), 1 Bom. L. R 551 (at p. 555 three propositions are sum-
   marised), 35 Bom. 199, 21 Bom L R. 419 and notes on Kāt. vv 510--512. Under the
   Deccan Agriculturists' relief Act (XVII of 1879) the benefit of the rule of dāmdupat is
   given even to non-Hindu debtors, if they are agriculturists.

• P. 171 (text).
  V. M. 26

202 VYAVAHĀRAMAYŪKHA [S. V I. 7 2 2
N p. 104 l. 32 p. 105 l. 15
it is but only once calculated.¹
Vijñāneśvara and others who are conversant with traditions say that
in one transaction of money-lending if interest is received at various times,
more than the highest interest (allowed by the śāstra at one time) may be
recovered (in the aggregate)
Now the rules about pledge.
Bṛhaspati (p 322 v 17) says
Ādhi is known as a pledge and is declared to be divisible into
four varieties viz movable, immovable, for custody (only) and for
use ²
Nārada (p 72 v 124) says
An ādhi (pledge) is that which is kept with (a creditor) with
power (to him over it) it is known to be of two kinds viz one to be
redeemed at or within a fixed time (the other) to be retained till the
debt is paid off ³
Hārīta says
A pledge must be preserved in the same state in which it was deposited
(with the creditor) otherwise the (pawnee) loses his interest and if
there be damage to or loss of the pledge, the principal is lost

• Vyatikramaḥ means loss of the pledge Yājñavalkya( II

59. says
    If a pledge that is to be kept in custody only were used (by the
    creditor) he shall receive no interest, so also if a pledge that is to be
    used be damaged.
    Hāpito means reduced to a state in which it is unfit for use
    Kātyāyana says
    (The creditor) who would make the pledge work against the latter's
    will and without the consent (of the pledgor) shall be made to pay (the
    price of) the fruits of labour (to the pledgor) or he would not get his
    interest ⁴

1. There is another reading sakṛdāhṛtā (when recovered at one time and not by
   driblets every day or month) This verse of Manu is quoted in Dagdusa v Ramchandra
   20 Bom. 611 at p. 615 and it is held that arrears of interest recoverable at any one time
   are limited by the principal remaining due at that time. The words of the Mayūkha eta-
   prayoge &c. constitute the second rule mentioned above.
   2 Gopya means to be kept in one's custody without being used or enjoyed.
   The fourfold division is overlapping and not logical. The pledge of a movable may be gopya
   or bhogya as well Nārada's division given in the following verse is much better
   3 Nārada divides each of these into gopya and bhogya and these two again
   may be subdivided into immovable and movable.
   4 This verse refers to slaves pledged by way of gopyādhi. Compare Manu VIII 144
   and J. C. Ghose (text p. 179 and tr p 227) and 146. Yāj. II 59 (first half).
   p 173 (text)

S. V. 2, 2-4 ] PLEDGE 203
M. p.105 l. 15-p. 106 l.1 ]
'Karma kārayet' (in Kāt.) means 'he shall employ'; 'karma-
phalam' means 'the rent or wages'. Yājñavalkya (II 59) says :
A pledge damaged or destroyed, except by the act of God or king, must
be restored (by the pawnee)¹.
'Naṣṭaḥ' means 'has undergone deterioration'. Such a pledge must
be restored after bringing it to its former condition. Bṛhaspati says .
When a pledge has become worthless by being used, there is loss of
principal (to the pawnee).
Vyāsa declares in the case of a pledge being destroyed that its price
must be paid :
If through the fault of the receiver (i. e. pawnee) a pledge of gold
and the like be lost, the creditor, on recovering the principal together
with interest, should pay the price (of the article pledged).
Nārada (p. 73 v. 126) says :
If (the pledge) be destroyed except by the act of god or king, there
is loss of the principal (to the creditor).
Manu (VIII. 144) says :
He (the creditor) should satisfy the pawnor by paying the price;
otherwise he would be a thief of the pawn.²
Bṛhaspati (p. 323 v. 21) says ·
If a pledge be destroyed by the act of God or king, the debtor should
deliver another pledge or he should pay the loan with interest

• Vyāsa says ·
  If the pledge be destroyed by the act of God or the king no blame
  attaches in any case to the creditor (or pledgee).
  Kātyāyana says
  If the thing pledged were to fall (deteriorate) or were to be destroyed
  without any fault of the creditor (the pledgee) the debtor should be
  made to give another pledge (of equal value) and he would not be free
  from the debt.
  Yājñavalkya (II. 60) also says
  A pledge becomes complete (valid) by acceptance (or possession) of
  the thing pledged,³ if a pledge becomes worthless, even though proper

1 Compare sec. 152 of the Indian Contract Act about loss, destruction or
deterioration.
2. This is the same as Nārada p. 73 v. 127. According to Kullūka this refers to a case
where the pledge is deteriorated by use, then the pledgee must give as much money as will
be required to restore the pledge to its former state According to Asahāya the pawnee
must satisfy the pawnor by returning to him the profit made by using the pledge.
3 Possession is necessary in the case of a pledge (whether 'gopya' or 'bhogya')
to give it validity against subsequent dealings with the thing pledged, the rule being that
in the case of a pledge, gift or sale a prior transaction prevails over a later one (provided the

• P. 178 (text).

204 VYAVAHĀRAMAYŪKHA [ B. V. 1. 4-7
{ M. p. 100 ll. 2-12
-care be taken, another pledge must be kept (with the pawnee) or the
creditor (pawnee) must receive his money
Nārada (p 77 v 189) says
An 'ādhi is declared to be of two kinds, movable and immovable
both are complete (or valid) if there is actual possession (or enjoyment)
and not otherwise (i e. if there be no possession but mere witnesses or
document).
Vasiṣṭha also says
When¹ there are several documents of pledge executed at the same
time, the pledge to him is stronger who gets possession first
The same author says
If two (creditors) should come on the same day with the desire to
take possession, in such a case the pledge must be divided and enjoyed
equally by them this is the settled rule
*Kātyāyana says
If (a debtor) were to make a pledge of the same thing to two persons,
what would happen to him is that the prior transaction of the two should
be accepted (as enforceable or valid) and the person (debtor) who
made the two pledges would be liable to the fine prescribed for a thief ²
Yājñavalkya (II 58) says
A pledge is lost (i e forfeited to creditor) if it is not redeemed
before the debt has become double (with interest) A pledge with a
fixed date (for redemption) is lost on the expiry of the time (fixed)
but a pledge the fruits (or income) of which are to be enjoyed (by the
pawnee) is not lost (to the pawner)
Bṛhaspati (p 324 v 27) says
When the money lent (lit gold) has become double (with interest) or
when the period fixed has expired in the case of a pledge (delivered) for
a fixed period the creditor becomes the owner of the thing pledged after
having waited for a fortnight ³
prior one is complete) In the case of gopyādhi, the bhoga consists in the custody of the thing
though there may be no actual use. The verse of Nārada that follows is quoted in 2 Bom
279 at p. 508.
1 Compare Viṣṇudharmasūtra v 184 which says that possession is the determining
factor in a case of dispute between two pawnees.
2 For the words tam prati yad bhavet some books read tā pratipad bhavet
which is a better reading and means what should be the decision or what should be the
first (i. e. acceptable) transaction. Vide Vivāddharmasetu (v 181 183) which prescribes
punishment for such a debtor in the case of mortgages of land.
3 This verse is ascribed to Vyāsa by several writers. It prescribes two points of
time when the pawnee becomes the owner viz. when the principal has become dvatt
with interest and when the time stipulated has passed. But it allows a period of grace
viz a fortnight before the pledge becomes liable to be forfeited to the creditor
P 174 (text)

S. V. 2. 7-8 ' PLEDGE 205
M. p. 106' l. 20-p. 107 l. 4 ]
Vyāsa says :
A pledge for custody only may, when the principal has become double
( with interest ) and in the case of a pledge for a fixed period when the
time fixed has expired, be appropriated to his use ( by the creditor )
after informing the family of the debtor.¹
Bṛhaspati ( p 325 v. 29 ) says ·
When the money ( lent ) has been doubled ( with interest ) and the
debtor is either dead or not heard of ( for a long time ) ( the creditor )
may catch hold of the debtor's chattel ( pledged ) and may sell it before
witnesses.
Yājñavalkya ( II. 61 ) says
In the case of ( a debt ) contracted on the pledge of caritra ( the
king ) should cause the debtor to pay the loan together with interest and
he should cause to be paid double ( the amount ) when money has been
lent with an undertaking ( to the effect that double the money only will
be paid )²
*When ( a borrower ) from his confidence in the creditor deposits with
him for ( securing ) a small amount a very valuable chattel or when ( a
lender ) from his confidence in the debtor keeps with himself ( as a security )
for considerable money a pledge of extremely small value, it is said to be a
caritra pledge Or caritra may mean the merit derived from ablutions in
the Ganges and the like and caritra-bandhaka means a transaction where
such merit is pledged Both these kinds of caritra pledges are not for-
feited to the creditor, even though the sum lent has become double ( with
interest ) i. e. it is the money that has to be paid though it has become
double and there is no forfeiture of the pledge. A pledge that is made with
satyaṅkāra is not forfeited even though the loan has become double ( with
interest ) The same author ( Yājñavalkya II. 62-63 ) says
The pledge shall be returned to the ( debtor ) when he comes ( to
redeem it ); otherwise he ( the creditor ) would be ( deemed ) a thief
If the lender is not present ( i. e is dead or gone abroad ) the debtor
may get back his pledge after keeping the money ( due to the creditor )
1 This is ascribed to Bṛhaspati by Aparārka
2. This verse states exceptions to the rule contained in Yāj II. 58 The Mayūkha
follows the Mit in giving two meanings of 'caritra-bandhaka'. The Mit gives two
meanings of 'satyaṅkārakṛtam' When at the time of making the pledge the debtor
expressly stipulates that there would be no forfeiture of the pledge but that he would pay
only double the amount lent then there is no forfeiture This is the first meaning and
the Mayūkha seems to have accepted this The other meaning is not restricted to pledges
alone If a man makes a contract of sale or purchase he may give a chattel like a ring as
an earnest ( satyaṅkāra ) If the sale goes off through the default of the man who gave the
earnest, then he forfeits the earnest, but if the sale goes off through the default of the other
party to the contract then the party guilty of breach had to pay double the price of the
earnest to the man who delivered the earnest. Vide notes to V. M. p. 325,

• P. 175 ( text ).

206 VYAVAHĀRAMAYŪKHA [ B. V 2. 8-3.1 / M. p. 107 ll. 6-25
with some other person in the family (of the creditor) or its price at
the time being appraised (by arbitrators) it should remain with the
creditor but interest shall cease.
The meaning is: When the creditor is not present the pledge should be taken
back after paying the debt with interest into the hands of some one else in
the creditor's family, but if he (debtor) desires to pay the debt by selling
the pledge its price at that time should be ascertained and the pledge may
be kept (with the creditor) but without interest (from that date). Bṛhaspati
(p. 324 v. 23) says
When a field or other property has been enjoyed (by the creditor)
and from that property large income has accrued the debtor shall recover
his pledge if the principal and interest has been covered thereby (i. e. by
the income received).¹
Yājñavalkya (II. 64) says
When a debt has become double (by interest) and then a pledge is
made (to secure it) then the pledge shall be returned after double the
principal has been recovered from the profits thereof.²
Now (begins the discourse on) sureties
Yāj (II. 53) declares that a surety is of three kinds.³
Suretyship is ordained for appearance for assurance (or trust) and
for payment.
"Pratyayaḥ (in Yāj) means the inspiring of confidence by saying
'this man is honest'. But Bṛhaspati (p. 327 v. 40) mentions four kinds
(of sureties):
One says 'I shall produce the man', the other (second) says 'he is
a trustworthy man', (a third one) says 'I shall pay the money (lent
1 This verse applies to bhogyādhi. The agreement in a bhogyādhi may be of
two kinds, viz. that the income derived from the enjoyment of the pledge should be taken in
lieu of interest or that a portion of the income may be taken in lieu of interest and the
residue of the income be applied towards reduction of the principal. In this latter case the
creditor will have to keep an account. Vide Mit. on Yāj II. 64 for these two agreements.
2. Vide notes to V. M. pp. 327-328 for detailed explanation. According to the Mit.
and Aparārka a pledge the income of which is to be taken in lieu of interest and in part
reduction of principal is called kṣayādhi. This term and Yāj II. 64 apply to different
matters, the latter applies where the pledge is fortuitously only.
3. This verse of Yāj. is quoted in Smṛ. C. II. 10-9. Vide notes to Kāt. v. 531 for historical
treatment.
F 170 (text).

S. V B 1-2 ] SURETYSHIP 207
M. p. 107 l. 26-p. 108 l. 7 ]
to another ) ; ( the fourth says ) ' I shall deliver ' (debtor's assets to the
creditor ) ¹
' Apayiṣyāmi ' ( in Bṛhaspati ) means ' I shall make him pay '.
Kātyāyana says :
Three fortnights at the most should be allowed for finding out the
absconding ( debtor ) If during that time he ( the surety ) produces him
( the debtor ) the surety would be absolved from liability.
' Three fortnights ' is merely indicative. The meaning is : as much
time as is required ( for producing the debtor ), so much should be allowed.
Kātyāyana says
If the surety for appearance cannot produce ( the debtor ) at the time
and place ( agreed upon ), he should carry out what he has bound him-
self for, except where ( debtor does not appear ) through act of God or
the king.
' Nibandham-āvahet ' means ' he should pay the money due to the
creditor '. Bṛhaspati ( p. 327 v. 41 ) says :
The first two sureties ( for appearance and honesty ) must be made to
pay the sum that may be declared to be due at the time ( when the
debtor should have paid ) in case of failure ; but the latter two and in
their absence their sons also ( are liable to pay ) ²
Kātyāyana says ·
The debt ( of the grandfather ) arising from suretyship should in no
case be paid by the grandson ; even the son need pay only the principal
( of the suretyship debt ) of his father in all cases.
Vyāsa also says ·
A *grandson must pay the debt of his grandfather ( except suretyship
debts ), a son has to pay his father's debt arising from suretyship, but
only the principal , but the sons of these two should not be made to pay
(the debt of their great-grandfather and grand-father respectively) , this is
the settled rule ³

1. The first three varieties of Bṛhaspati correspond respectively to the surety for
   appearance, honesty and for repayment. The fourth kind of surety undertakes to hand
   over the property ( furniture in the house &c. ) of the debtor in case the latter does not pay
2. ' The latter two '— this means ' the surety for payment ' and ' for delivery of the
   debtor's chattels '. The son of the surety for honesty and appearance is not liable to pay
   his father's suretyship debt but the sons of the other two kinds of sureties are liable to pay
   ( but not the grandsons ). In Tukarambhat v Gangaram 23 Bom 454 at p 459 the texts
   of Yāj., Bṛ. and Kāt are examined and it is held that ancestral property in the hands of
   sons is liable for the suretyship debts of their father, when latter was surety for payment
   of money or delivery of goods , vide 28 Mad 377, 89 Cal. 843, 26 All 611
3. The text of Vyāsa applies when a man stands surety without receiving any
   monetary consideration. The son of the grandson need pay no debt of the great-grandfather
   while the son of the son need not pay the suretyship debt of his grandfather. In Narayan
   v. Venkatacharya 28 Bom 408 this is quoted There are apparently conflicting texts about
   the liability of descendants for their ancestor's debts. But the conflict will not exist if each

• P, 177 ( text ).

208 VYAVAHĀRAMAYŪKHA [ S. V. § 2-4
[ M. p. 108 ll. 8-25
The grandson should pay the debt of his grandfather but only the
principal, the son also should pay only the principal of the suretyship debt
(of his father), this applies when the position of a surety is undertaken
without receiving any monetary consideration. But where suretyship is
undertaken after receiving money the son and the grandson also should pay
(the suretyship debt) with interest. And so says Kātyāyana:
Where a person becomes a surety for the appearance of a man after
receiving a pledge from him the son of the surety should be made to pay
in the absence (of the father) the money from his paternal wealth.¹
Yājñavalkya (II. 55) says:
If there be many sureties they should pay the debt (due from the
principal) in accordance with their shares (i. e. equally or in pro-
portions agreed upon) but when they have each bound themselves to
the same extent (as the principal) then at the pleasure of the creditor
(any one of them will have to pay the whole)
Ekacchāyā means an undertaking made by each 'I alone shall pay
the whole (debt).' when the sureties have resorted to such an undertaking
any one of them would have to pay according to the creditor's choice. But
when the agreement is 'I shall pay in certain shares' then payment shall
be made accordingly. This is the meaning. Kātyāyana says:
text is given its appropriate scope. Ancient sages made sons and grandsons liable for their
father's or grandfather's debt even if no property of the father or grandfather came to their
hands. But it seemed very hard that descendants should be made to pay their
remote ancestor's debts with interest. Therefore when no property existed, the great
grandson was not bound to pay any debt of his great-grandfather, the grandson was
bound to pay only the principal (but not interest) and the son was liable to pay
the principal as well as interest. But if ancestral property existed and was taken by
descendants, then sons, grandsons and great-grandsons were all bound to pay the debt to
the full. This last follows from Yāj. II. 51, Bṛ (p. 328 v. 48). Kātyāyana quoted above
(on text p. 101) verses 555-558 of Kāt. and the Mit. on Yāj. II. 51. The former pro-
position is the subject of the verse of Vyāsa and of Bṛ (p. 328 v. 42). The Vīramitrodaya
(p. 84) very tersely but clearly puts these two propositions: पुत्रेण रिक्थग्रहणादृणयोः स-
वृद्धिकमेव देयम् । पुत्राभावे पौत्रेण रिक्थग्रहणे सोदयं देयम्। अग्रहणे मूलमेव । प्रपौत्रेण तु रिक्थग्रहणे
मूलमपि न देयम् ॥ As to suretyship debts a distinction was made. If no money was
received, even the grandson was not bound to pay his grandfather's suretyship debt and
the son was bound to pay only the principal. This is expressed by Kāt. Some writers
went so far as to say that the son was not bound to pay any suretyship debt of his father
(vide Gautama XII. 38, Manu VIII. 159, Vas. XVI. 31) while others said that the son was
not bound to pay when the father stood surety for appearance or honesty but that he was
bound to pay when the father stood surety for payment (vide Manu VIII. 160 and
Bṛ. p. 327 v. 41 cited above). In 10 Patna p. 34 it was held that if the father stood
safety for honesty the son was not bound to pay that debt. Vide also 4 Patna L. J. 309.

1. The Mit. on Yāj. II. 51 explains that this applies to the surety for honesty also.
   If we read vinā pitṝ dhanāt the meaning would be 'in the absence of the father from
   that wealth (viz. from the pledge).' In the absence of the father means 'if he be
   dead or gone abroad'.
   )

S. V. 34-V. d 2 209
M. p. 108 l. 20-p 109 l. 14 ] SURETYSHIP
*Of sureties jointly and severally bound any one that is found may be
made to pay ( the whole debt ) If he be gone abroad his son may be
made to pay the whole; but if he be dead then his son shall pay
according to his father's share ( i e proportionate liability )
'Pitrams'āt' means ' in accordance with his father's share ( of the debt
guaranteed ) ' Yājñavalkya ( II 56 ) also says :
When a surety has been made to pay publicly ( the whole ) debt to
the creditor, the debtor should be made to return double the amount to
him ( or his son ).¹
Bṛhaspati ( p. 328 v. 44 ) says •
He, who being made a surety and being harassed ( by the creditor )
pays the suretyship debt, is entitled to receive ( from the original debtor )
twice the amount ( paid to the creditor ) after the lapse of three
fortnights.²
Now about the method to be followed by the creditor in
recovering debts
Bṛhaspati ( p⁻ 329 v. 54 ) says •
A debtor who acknowledges a debt to be due should be made to pay
by the expedients of coaxing and the rest, by appeal to dharma, by
artifice, by force ( or compulsion ) and by barring his house.
' Pratipannam ' ( in Bṛhaspati ) means ' admitted by the debtor ',
' upakramaiḥ ' means ' by expedients '. The same author ( Bṛhaspati p. 330
vv. 55-58 ) explains these ( terms, dharma etc. )
That is declared to be dharma ( expedient ) where a debtor is made
to repay by the advice ( or messages ) of friends and good kinsmen, by
coaxing words, by persistent following, or by importunate entreaties ( or
creditor's starvation ). When the creditor brings from the debtor
some object, borrowed on some pretext, or where the creditor retains an
anvāhita deposit and thus the debtor is made to pay, that is said to be
( the expedient of ) artifice ³ That‡ is declared to be compulsion where a

1. This applies only where the surety or his son is pressed by the creditor to pay and
   so pays. If the surety pays out of greed to secure double of what he pays, he would not get
   double.
2. If the debtor pays before three fortnights expire, the surety or his son would get only
   what he paid.
   3 ' Anvāhita ' is what a debtor hands over to a creditor for being delivered to a
   third person. The creditor retains such a deposit and thereby compels payment. ' Borrowed
   on some pretext '— i e. borrowing an ornament &c. for marriage or other festive
   occasion

• P. 178 ( text ). ‡ P. 179 ( text ).
  V. M. 27

210 VYAVAHĀRAMAYŪKHA [ S. V 4.3-4
[ M. p.109 l. 14-p.110 l. 2
debtor is made to pay by being bound brought to the house of the
creditor and by such means as beating and the like Where by restraining
his sons or wife or cattle or by sitting down at his door a debtor is made
to pay the money (lent) that is said to be ācarita ¹
‘ Anugamaḥ means following , prāyaḥ means entreaty ’,
‘ anvāhitam means an ornament or the like given to (the creditor) for
being handed over to a third person As regards these expedients of
dharma and the like Kātyāyana speaks of certain restrictions
(A creditor) should make a king a master or a brāhmaṇa debtor
pay (a debt) by the mode of coaxing and he should make a co-heir or
friend pay (a debt) by artifice only Traders husbandmen and artisans
should be made to pay according to the usage of the country he should
make wicked debtors pay by the expedient of harassment ² This is
the view of Bhṛgu.
The same author (Kātyāyana) says
The debtor should be kept openly in restraint before an assembly of
people according to the dictates of local custom whatever he gives
may be taken (by the creditor)
The same author (Kātyāyana) forbids the (continuance of the) confine-
ment of a debtor when the confined debtor has an inclination to evacuate
Where a man held confined (for debt) has an inclination to void urine
or faeces, he should be followed from behind or he should furnish (another
person) as a surety (or hostage).³
• Nibandham means a son or the like who would be a substitute
for him (the debtor) The same author (Kātyāyana) says that a con
fined debtor should be let off for meals after taking a surety for appearance
That (debtor) if he has furnished a surety should everyday be set
free at the time of taking meals and at night (while) the surety
remains confined He who cannot secure or tender a surety for appear
ance should be confined in jail or should be placed in the presence of
guards A respectable trustworthy and pure man should not be con-
fined in a jail, he should be released without a surety or should be bound
over on his oath.

1. Ācarita seems to be meant as a synonym for gṛhasaṁrodhana Manu VIII
   49 speaks of ācarita as one of the five expedients of recovering a debt. In view of the fact
   that ācarita is separately defined it is better to take prāyaḥ as meaning entreaty
2. Sāntva is the same as sāma by harassment — this includes the modes of
   bala (compulsion) and ācarita. Though Manu speaks of the five expedients, there are no
   verses in Manu corresponding to the restrictions mentioned by Kāt. The 2nd. verse is quoted
   in Raghunathaji v Bank of Bombay 31 Bom. 72 at p. 78. These means could be employed
   only if the debtor admitted the debt, but if he repudiated the debt, then the only remedy was
   an action at law (vyavahāra)
3. If we read nibaddham &c. it would mean he should be let out with fetters
   on
   _ P 180 (text)

S. V. 4.4-7 RECOVERY OF DEBTS 211
M. p. 110 ll. 2-24 ]
'Na vārayet' means 'would not tender'; 'cārake' means 'in jail';
'rakṣiṇaḥ' means 'he should be kept with guards who are told (about
his being confined for debt)'; 'prātyayikaḥ' means 'trustworthy'. Bṛhaspati
(p. 331 v. 60) says:
When the time fixed (for payment) has elapsed and interest has
ceased (owing to the debt having risen to double the principal) the
creditor should recover the debt or the debtor should execute a bond
by the mode of compound interest ¹
'Pūrṇāvadhau' means 'when the debt has risen to double or the like'.
Hence it is reasonable that interest ceases (in such a case). The creditor
should recover (i. e. take) the debt. 'cakravṛddhi' means 'calculation
of interest (on the aggregate) after adding interest to the principal'. Nārada
(p. 71 v. 131) says
"If a debtor is unable to pay owing to adverse times, he should be made
to pay the debt gradually (by instalments) according to his means and ac-
cording as he happens to acquire (money or property).
Manu (VIII. 177) says.
Even by (doing) work (suited to his caste) should the debtor make
himself equal to his creditor, if (the debtor) be of the same caste (as
the creditor) or of a lower one. But a debtor of a higher caste (than
the creditor) may pay (the debt) gradually ²
As regards what Yājñavalkya (II. 43) says
(The creditor) may make a debtor of a lower caste work personally
for liquidating the debt, if he be indigent, an indigent brāhmaṇa how-
ever should be made to pay gradually according as he happens to have
means (or money)
there the word brāhmaṇa stands for any one of a superior class The same
author (Yāj II 40) says ·
A creditor recovering an admitted debt (by the expedients of dharma
&c.) will not be liable to be blamed by the king, a debtor from whom
(an admitted debt) is being recovered (by the above expedients) should
be fined, if he goes (i e. complains) to the king and should be made to
pay the debt.
Bṛhaspati (p 331 vv. 62-63) says ·

1. This refers to capitalisation of interest and an agreement to pay interest on interest
   (and principal) This verse together with the comment of V. M. is quoted in Suklal v Bapu
   24 Bom 305 at p 308 for the proposition that capitalisation of interest was allowed in
   Hindu Law.
   2 In the first half we must understand that the debtor belongs to the kṣatriya,
   vais'ya or s'ūdra caste and the creditor belongs to the same caste as the debtor or to a higher
   one. As regards a brāhmaṇa debtor the rule is contained in the last pāda 'Make himself
   equal &c.' i e he should be free from being indebted to him Compare a similar rule
   about fines in Manu IX. 229.

• P. 181 (text).

212 VYAVAHĀRAMAYŪKHA [ B. V 4 7 3 / M. p. 110 L 24 p. 111 L8
This is the rule concerning him who admits (his liability) but (a
debtor) denying (his liability) shall be made to pay on (the debt)
being proved in a (judicial) assembly by a writing or by means of
witnesses. (A debtor) claiming judicial investigation in a doubtful case
should never be put under confinement (by the creditor), but he who
puts under restraint one who should not be restrained becomes liable to
be fined according to law
Āsedhaḥ means restraint by the king's order The same author
(Bṛhaspati p 331 v 64) says
Where a debtor says what may be found to be justly due that I,
shall pay such a debtor is called kriyāvādī (one claiming judicial
proof)
*Kātyāyana says
A creditor who harasses a debtor claiming judicial investigation would
lose his money and becomes liable to a fine equal to the debt.
Bṛhaspati says
He who in a doubtful (or contested) case proceeds with force (to
recover his debt by dharma bala &c) without complaining to the king
should be punished by the king and that money (the debt) he cannot
recover¹
Yama says
That debtor who though well off, does not return (a loan) on account
of his wicked nature should be made by the king to pay (the debt to the
creditor) after recovering (as a fine) from him (debtor) double (the
amount of the debt)
Yājñavalkya (II 42) says
The debtor should be made by the king to pay (to the king) ten
per cent of the claim established and the creditor should be made to pay
five per cent when he succeeded in his claim²
Daś'akam means with ten in addition i e. the tenth and
twentieth share (respectively) The sense is that these shares belonged
to the king and the remaining belonged to the creditor The levy of a tenth
share (for the king as his fee) refers to a poor (debtor) But Nārada
(p. 74 v 132) states a special rule about a rich (debtor)

1. Prasahya may also be connected with vinayaḥ and then the meaning would
   be he should be punished severely Br p. 331 v 65 says that when there is a difference
   of opinion between the two parties regarding the nature of the loan, about the number (i. e
   about the sum advanced) or about the rate of interest stipulated, or whether the amount
   claimed be due or not that is termed a doubtful case.
2. Ten per cent and five per cent recovered from the debtor and creditor respectively
   were in modern language the court fee but it was, it appears charged after the case was
   decided and not at the very institution of the suit, as now These recoveries were
   made only when there was no dispute as to the debt but where the debt itself was repu
   diated Yāj II. 42 applied.
   P 132 (text)