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

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)

S. V. 4. 8-10 ] RECOVERY OF DEBTS 213
M, p. 111 ll. 8-30 ]
A debtor, who being well off, does not pay ( a debt ) through wicked-
ness should be compelled by the king to pay it after taking twenty percent .
( from the debtor ).
*The meaning is ' twenty in a hundred ' ¹
When several creditors present themselves at the same time ( for pay-
ment ) Yājñavalkya ( II 41 ) states the order ( of payment ) :
A debtor shall be made to pay his creditors in the order in which ( the
loans ) were taken, but after ( first ) discharging ( the debt due ) to a
brāhmaṇa and afterwards that due to the king.²
Kātyāyana, as quoted in the Vivādaratnākara, says
When, however, there are several debts due at the same time that
which was first contracted should be paid first , a debt due to a king
( should be paid ) after one due to a learned brāhmaṇa. Where ( several
debts ) are contracted in writing on the same day, ( the king ) should
treat all as equal so far as the security, its protection and enjoyment are
concerned ³ In other cases ( i e where debts are not of the same date )
they should be paid in order ( of dates ) Where a creditor establishes
that a particular article for sale was manufactured ( by the debtor ) with
the money ( or materials ) supplied by him, the money ( got by sale of
the article ) should be given by the debtor to that creditor only and not
otherwise
Yājñavalkya ( II. 93 ) says
The debtor should write on the back of the document the money paid
by him from time to time ( by instalments ) or the creditor shall pass a
receipt marked with his own hand.
Nārada ( p 70 v 116 ) says
When the debt is discharged ( the creditor ) should return the document ;
in the absence of the document ( creditor ) should give a receipt. In this
way the creditor and debtor would be free from their mutual obligations.
¶ ' Pratis'ravah ' means ' a document of release declaring that a debt

1. Par M. and Vir explain differently, saying that it means ' a twentieth part ' of
   the claim Compare Manu VIII 139, Visnu VI 20-21
2. If the creditors were of the same caste and all approached the king at the same
   time, debts were paid in the order in which they were contracted ( i e the earlier prevailed
   over the later ), but if the creditors were of different castes, the brāhmaṇa creditor was paid
   first though his debt was later in date than that of a kṣatriya creditor Vide sec 48
   of the Transfer of Property Act ( for the the proposition that the first in time prevails ) and
   sec 56 of the Bombay Land Revenue Code ( which makes state revenue a paramount charge
   on the land ).
3. This verse states a rule of rateable distribution among several debts if the debtor is
   not able to pay all fully The same rule applies to a pledge, to the expenses of preserving it
   and to the interest or enjoyment of it.

• P. 183 ( text ). ¶ P. 184 ( text ).

216 VYAVAHĀRAMAYŪKHA [ M. p. 111 l. 31-p. 112 l. 15 ]
was returned ¹ Kātyāyana states the evil results happening to a debtor
in case he does not repay a debt:
He who, having taken a debt or the like does not pay it back to the
owner (creditor) is born in (the latter s) house as a slave a servant a wife
or a beast ²
Uddhāraḥ ³ means a debt; by the word ādi (in uddhārādikam)
a friendly loan and deposit are included. Dāsaḥ means a born slave ,
bhṛtyaḥ ¹ is one who is secured for wages. Nārada ( p 44 vv 7-8 ) says
The debt or promised gift which a debtor does not pay even when
demanded goes on multiplying till it reaches to a thousand millions. On
that amount being reached the debtor enveloped in ( the consequences of )
that act shall be born in each successive birth a horse a donkey a bull
'or a slave.
'Pratigraham means what is promised to be given Vyāsa also
says ³
If an ascetic or an agnihotrin ( one who keeps sacrificial fires ) were
to die indebted all ( the merit of ) his austerities and agnihotra will
belong to the creditor
Bṛhaspati ( p 328 v 49 ) says
The father s debt when proved must be repaid by the sons as if it were
their own ( i. e with interest ) The debt of the grandfather should be
paid equal to the principal ( i e without interest ) and the son of the
grandson need not pay at all.⁴
1 The V R. and Aparārka explain pratis'rava as meaning a verbal acknowledg-
ment in public ( or before witnesses ) of the repayment of a debt This is, according to
Amara, the proper meaning. The meaning assigned in the text is far fetched.
2. Compare Nārada p. 44 vv 7-8 quoted later on.
3. This is Nārada p. 44 v 9
4 Vide text p 177 Vyāsa verse. This verse is quoted in Narayanacharya v Narso 1
Bom. 269 at p. 286. Bṛhaspati as said there is referring to a case where no property comes to
the grandson. The Mit. on Yāj. II. 51 distinctly says that if the great-grandson and the like
take the estate of the deceased, they have to pay the debt of the great-grandfather. Modern
decisions have followed this view of the Mit. In 19 All. 26 ( F B. ) and 4 Patna 478 a
grandson taking assets was held liable to pay his grandfather s debt with interest, while L.R.
53 I. A. p. 204 (=48 All. 518) decides that the great-grandson who has taken assets is liable
to pay the debt of the great-grandfather with interest just as a son is liable. In 48 All. 518
at p. 526 Yāj II. 50 and Bṛ. are quoted. In Narsinharas v Krishanarao 9 Bom. H. C. R.
p. 64 it was held ( probably following Bṛhaspati ) that the grandson was liable to pay the
debt of his grandfather without interest independently of the question whether he took assets.
In order to remove the great hardship on heirs ( taking no assets ) caused by this decision
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 a son or grandson and that the son or grandson or other heir shall be
liable only to the extent of the assets that came to his hands. In 19 All. 26 ( at p. 29 )

S. V. 4. 12-11 ] RECOVERY OF DEBTS 215
M. p. 112 ll. 16-30 ]
Yāj (II. 50) says ·
When the father has gone abroad or is dead or is overwhelmed by diffi-
culties, his* debt if proved by witnesses when it is disputed (by the sons
or grandsons) must be paid by sons and grandsons ¹
Nārada (p. 46 v. 14) says that the son and the rest were bound to
pay the debt (of the father &c) only when twenty years old :
When the father had gone abroad and also in the case of the uncle or
eldest brother (going abroad) the son (or the nephew &c) was not bound
to pay the debt before the twentieth year.²
Kātyāyana says :
A debt incurred by the father, if he is afflicted with disease or has left
his country for another must be paid by the sons after the twentieth year
even when the father is living ³
The word 'proṣita' (gone abroad) is indicative also of 'one dead'.
Hence Viṣṇu (Dh. S VI 27) says 'when the borrower is dead or has become an
ascetic (sannyāsin) or has lived abroad for twenty years, the debt must be
paid by his sons and grandsons'. Nārada (p 41 v 2) says
When the father is dead, the sons should pay the (father's) debt accor-
ding to their shares if they be divided; but if undivided then he (out
of the sons) should pay who bears that responsibility (as a manager of
the family) ⁴
two verses of Kātyāyana about the grandson's liability to pay with interest and also with-
out interest are referred to. In 4 Patna 478 (at p 482) the judges express their inability
to understand what Bṛhaspati means when he says that the grandson should pay grand-
father's debt without interest and follow Yāj. and Viṣṇu and refuse to follow Bṛhaspati.
They had no idea of the particular circumstances under which alone, as shown above,
Bṛhaspati's text was to be applied.

1. This verse makes no distinction between sons and grandsons as to the payment of
   debts (while Br. makes that distinction) and applies where assets are taken by the grand-
   sons. The Mit explains 'vyasanābhipluta' as 'afflicted with an incurable disease', while
   Aparārka explains as 'addicted to drinking or other vices' If there were sons and grand-
   sons the Mit says that the sons were the first to pay This verse is quoted in 42 Mad. 711
   (F. B.) at p. 730.
2. This does not apply to a debt incurred by the father and others for a family
   necessity. Such a debt must be paid at once This verse states the liability of the son
   and others when the father, uncle or brother was alive though gone abroad and the debt was
   not for family necessity Nilakantha refers 'twenty years' to the age of the son &c, while
   other authors like the Vīr refer them to the lapse of time after the father went abroad.
   Viṣṇu VI. 27 quoted in the text later on supports this latter interpretation
   3 This verse is referred to in I L. R. 41 Mad 136 at p 149 and 42 Mad. 711
   (F. B) at p 730.
3. This verse is quoted in Narayanacharya v Narso 1 Bom. 262 at p. 266 and in
   19 All. 26 (F B.) at p. 28. Vide Udaram v. Ranu P J. for 1875 p '26 at pp. 28-29
   for texts.

• P. 185 (text).

216 VYAVAHĀRAMAYŪKHA [ S. V. 4. 14-15 !
[ M. p. 112 l. 31 p.118 l.9
Kātyāyana says
While the father's debt remains (unpaid) the son shall not take the
father's wealth which should be given to the creditor even without
(paternal) wealth the son is made to pay the father's debt.
The word dravyam (in Kāt.) is to be connected with ṛte the
meaning being without or in the absence of wealth. Bṛhaspati (p. 328 v
48) says
The father's debt must be paid first of all and after that a man's own
debt but a debt contracted by a grandfather must always be paid even
before these two.¹
*Yājñavalkya (II 47) says
The son shall not pay his father's debt contracted for wines lust and
gambling or due on account of unpaid (portions of) fines or tolls or on
account of an idle promise
Bṛhaspati (p. 329 v 51) says
(The king) should not make the son pay a debt (of his father) incurred
for wines or (losses) in gambling with dice for idle gifts or promises
made through lust or wrath, or for suretyship or for the balance of a fine
or toll.

1. This verse is in apparent conflict with another verse of Bṛ. quoted above (vide
   p. 214n 4). This verse must be taken as referring to a case where assets were taken
   by the grandson. The number of cases in which the son's or grandson's liability to pay
   the father's or grandfather's debts has been recognised in modern decisions is incalculable
   It is impossible to refer to them. The several propositions deducible from the decided
   cases are summarised in Joharmal v Eknath 3 Bom. L. R. 322 and very recently by the
   Privy Council in Brij Narain v Mangla Prasad L. R. 51 I A. 129 (= 46 All 95). The
   propositions laid down by the P C. are (1) The manager of a joint undivided estate
   cannot alienate or burden it except for purposes of necessity (2) if the manager be the
   father and the other members be his sons, he may so long as it is not for an immoral pur-
   pose, lay the estate open to be taken in execution upon a decree for the payment of his per-
   sonal debt (3) if the father purports to burden the estate by a mortgage it would not
   bind the estate unless it is made for discharging an antecedent debt (4) antecedent
   means antecedent in fact as well as in time i. e. it must be truly independent of and not
   part of the transaction impeached by the son (5) this result is not affected by the ques-
   tion whether the father is alive or dead. It will be seen that in propositions 2 and 3 the
   Privy Council makes a distinction between a pure money debt of the father and a debt of
   the father secured by a mortgage. The ancient Hindu Law books afford no warrant for
   this distinction. Besides the P C. in Suraj Bunsi Koer v Sheo Prashad 6 I. A 88 at p.106
   (= 5 Cal. 148 171) for the first time used the words antecedent debt for which there is
   nothing corresponding in the Sanskrit texts and round which elaborate arguments have
   centred in numerous cases. According to the P C. (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. This
   goes far beyond the spirit of the ancient Smṛti texts which made the son liable during the
   father's lifetime only if the father had gone abroad for many years or was afflicted with
   incurable disease or was extremely old. Vide Yāj. II 50 Nārada and Kātyāyana quoted
   above.
   P 185 (text)

S. V. 4. 15-16 ] RECOVERY OF DEBTS 217
M. p. 113 ll. 9-17 ]
Us'anas says :
The son need not pay the fine or the balance of a fine, the toll or balance
of a toll or ( any debt ) which is not vyāvahārika.¹
Yājñavalkya ( II. 51 ) mentions the order of those who are responsible
for the payment of debts.
He who receives the estate ( of the deceased ) should be made to pay
his debt and so also one who takes the wife ( of the deceased ); failing
them, the son ( should be made to pay ) when no paternal wealth has
gone to another person ; those who take the wealth of a sonless man
( should be made to pay his debts ).

1. These verses of Us'anas, Bṛhaspati and Yāj. state exceptions to the rule ( Yāj. II
   50 ) that sons ( and grandsons ) had to pay their father's debts. A debt due to lust is defined
   by Kātyāyana ( v. 564 ) as one promised orally or in writing to a woman who is another's
   wife or who is not married to the father. A debt incurred through wrath is defined by
   Kātyāyana ( verse 565 ) as one promised to a man to whom the father caused physical
   injury or whose wealth the father destroyed by way of pacifying him. 'An idle gift' is
   one promised to bards, wrestlers, jesters and the like. In numerous decisions these three
   verses about debts that the son was not bound to pay have been quoted and explained. The
   greatest difficulty is caused by the words 'na vyāvahārikaṁ' in Us'anas. They have been
   variously interpreted by Sanskrit commentators Aparārka explains as 'na nyāyyam'
   ( not righteous or proper ), Sm. C. as 'śaurikaṁ' ( incurred for drinking ) and Vīr. does
   the same. The Bālambhaṭṭī explains as 'na kuṭumbopayogi' ( not for the benefit of the
   family ) while Vivādacintāmaṇi explains it as 'vyavahāra-bahiṣkṛta' ( what is beyond the
   ordinary conduct of a person ). This divergence is reflected in the modern decisions also.
   In Durbar Khachar v. Khachar Harsur 32 Bom. 348 'na vyāvahārikaṁ' was explained
   as a debt which the father ought not as a decent and respectable man to have incurred
   and it was said that the son was not liable for debts attributable to his father's failings,
   follies and caprices This was doubted in 40 Bom. 126 and 43 Bom. 612 and disapproved of in
   39 Cal. 862 ( where it was rendered as 'not lawful, usual or customary' ), 37 Mad. 458
   ( explained as 'not supportable as valid by legal arguments and on which no right could
   be established in the creditor's favour in a court of justice' ), 38 All. 472, 4 Lahore 93
   ( which at p. 97 follows the explanation in 37 Mad. 458 ). In the latest Bombay cases Bai
   Mani v. Usafali 33 Bom. L. R 130 ( at p. 133 ) and Bal v Maneklal 34 Bom. L. R. 55 at
   pp 67-68 (=56 Bom. 36 ) the various meanings of 'na vyāvahārikaṁ' and the conflict of
   judicial decisions are set out. In the latter case ( at p 69 ) the wide interpretation contained
   in 32 Bom. 348 has not been accepted In this Bombay case it was held that the trade
   debts incurred by a Hindu father for the purposes of a trade started by himself are binding
   on his sons. But this proposition seems to be wrong in view of the Privy Council ruling
   in the Benares Bank Ltd. v. Hari 34 Bom. L. R 1079 ( P. C ), where it was held that a
   business started by the father as manager cannot, if new, be regarded as ancestral so as
   to render the minor member's interest in the joint family property liable for debts con-
   tracted in the course of the business Another difficulty is caused by cases where the father
   incurs liability for misappropriating money as a guardian or trustee or is guilty of a criminal
   act. Vide 31 Mad 161 and 472 ( distinguishing 27 Mad 71 ), 48 All. 9, 51 All. 386 ( at p.
   391 'na vyāvahārikaṁ' referred to ), 43 Bom. 612 'In Bai Mani v. Usafali 33 Bom.
   L. R. 130 it was held that a Hindu son is not liable to pay his father's debt where the
   liability arises directly from a criminal act ( e. g. where the father being appointed
   guardian of a minor misappropriates minor's money ).
   V. M. 28

218 VYAVAHĀRAMAYUKHA [S. V - 4, 16-17 ...]
[M. p. 118 ll. 17-18]
That man is termed rikthagrāhaḥ (in Yāj.) who takes the
wealth of the (deceased) father of a person, either justly because
the son though living is affected by defects such as impotency and the like
or unjustly when there is no defect (in the son). In the same way
yoṣidgrāhaḥ is one who takes the wife of another (after the latter's
death). The condition that no paternal wealth should have gone to
another may occur in two ways, either because there is a non-existence
the counter-entity of which is characterised by the quality of going to
another or because there is non-existence the counter-entity of which is
merely the qualifying adjunct viz. estate.¹ Here the meaning is that he
who takes the estate has first to pay the debts (of the deceased), on failure
of him the taker of the wife (has to pay the debts), on failure of him the
son when the estate has not gone to any other person (because none exists), on
failure of him (the son) the grandson (has to pay) only the principal (and
no interest) on failure of him the great-grandson the wife, the daughter
and the rest who are rikthinaḥ (i.e. if they take the estate) should pay the
debts of the deceased. If* no inheritance² is received then debt is not pay-
able by the great-grandson by the wife and the rest. Heritage when taken,
even though small leads to the liability to pay off debts even though
1 The verse rikthagrāha &c. is a very difficult one and various interpretations
have been proposed. Vide for details notes to V. M. pp. 340-345. The meaning of the
rather obscure clause in the Mayūkha 'the condition... estate' is this: a son may be one
whose paternal wealth has not gone to another person in either of two ways. First, the
father may have left no wealth. In such a case the son inherits no property and so such a
son is 'ananyāśritadravya' (as no property exists); secondly a father may have left
property and also sons, in such a case the wealth that exists will not go to another and
so the son will be ananyāśritadravya. The rule is that he who takes the estate should
pay the debts. If a man died leaving property a congenitally blind son and a
nephew the nephew would have taken the estate. In such a case in spite of
the rule 'putrapautrairṛṇaṁ deyaṁ' the nephew would have to pay the debts
because he takes the estate. If there is no wealth, but a man leaves a widow and
a son the man who takes his widow had to pay debts and not the son who took no
assets. This text does not prescribe re-marriage. Remarriages were prohibited by Manu
(V. 162) but by custom or otherwise they did take place. In that case the man who
took the widow (as a wife or mistress) had to pay the deceased man's debts. This was
apprehended to be the law even in modern times and so sec. 4 of the Bombay Act VII of
1866 (Hindu Heirs' Relief Act) expressly provides no person who has married a Hindu
widow shall merely by reason of such marriage be liable for any of the debts of any prior
deceased husband of such widow. If a man left no wealth and none took his widow,
then his son, though he took no wealth, had to pay his deceased father's debt. This is
expressed by 'putro &c.' It might be contended that 'ananyāśritadravyaḥ' means that
wealth exists but has not gone to another. To that Nīlakaṇṭha replies by saying that
even when merely wealth does not exist the son may yet be called 'ananyāśritadravya'
and that this second meaning of ananyāśritadravyaḥ is intended in the verse of Yāj. and
not the first meaning.

• 2 This sentence and the next are referred to in Lakshman v. Satyabhamabai
  2 Bom. 491 at p. 499. This proposition of the Mayūkha about a small estate making the
  taker liable to pay heavy debts is not supported by the Mit. or any other high authority.
  P. 187 (text)
  l. 7
  v

S. V. 4. 17-19
M. p.113 l.33-p. 114 l.22 ] RECOVERY OF DEBTS 219
comparatively very large. It is not a rule that heritage which is equal to or
more than the debts alone leads to liability to pay debts. Another meaning
of the last quarter of the verse is of a creditor who is sonless, the 'rik-
thinaḥ' i. e the wife, daughter and the rest who are entitled to take his
estate should recover the debts from the debtor of their husband and the
like. Viṣṇu (Dh. S VI. 29) says 'the man who receives the assets of the
deceased, whether he have sons or he be sonless, shall pay his debts'.
Bṛhaspati (p. 329 v. 52) says ·
'The taker of the wife is similarly liable (to pay the debt) in the absence
of a taker of the estate'. Kātyāyana says ·
(The king) should make the son pay (the debt of his father), if he
be free from disease, capable of taking the estate (of his father) and is
able to shoulder (the liability); but (he) should not make the son pay
otherwise. First the taker of a man's wealth should pay his debts, after
him the son should pay, when there is no son or when the son is very
poor the taker of the wife (shall pay the debt)¹
Nārada (p 47 v 21) says ·
But if a widow has plenty of wealth and has offspring and repairs to
another (man) together with them (the wealth and offspring), that man
must pay the debt contracted by her (deceased) husband or he must
abandon her together with her wealth and offspring
Kātyāyana says :
The debt contracted by liquor-sellers and the like who have no wealth
and no sons should be paid by him who enjoys their wives.²
*Nārada (p 48 v. 23) says ·
Among the three, viz the taker of the wealth (of the deceased), the
taker of his widow and the son, he is liable for the debts (of the deceased)
who takes his wealth; on failure of the taker of the widow and of the
taker of the wealth, the son (is liable for the debt); on failure of the
taker of the wealth and of the son, the taker of the widow (is liable for
the debts)³
1, 'Capable of taking' i e. not liable to be excluded from inheritance for causes
mentioned in Manu IX 201 and Yāj II. 140, 'able to shoulder' i. e. of age and able to
pay back the debt There is an apparent conflict between the second verse of Kāt and Yāj.
II. 51 (rikthagrāha &c) But really there is none Kāt here provides for a special
case viz if there are no assets of the deceased then the son who has much more property
of his own than the taker of the wife (of the deceased) should pay the debt, when the son
is not wealthy and no assets are left by the deceased, then the taker of the wife
should pay.
2. Mandlik translates (p 114) 'śauṇḍika' as drunkard but, this is wrong
3. We must take the third quarter as corresponding to Yājñavalkya's 'putroSnanyā-
s'ritadravyaḥ' But the words of the last quarter seem to be in conflict with the order
proposed by Yāj (viz first 'rikthagrāha', then 'yoṣidgrāha' and then the son who is
'ananyāśritadravya'). Therefore Nārada's last quarter must be taken as referring to a
case where there is no son richer than the second husband or paramour of the widow of the
deceased, as in Kātyāyana's text quoted above (first the taker of the assets should pay &c.).

• P. 188 (text)

230 VYAVAHĀRAMAYŪKHA [B. V. 4. 19-20 / M. p. 114 l. 26-p. 115 l. 8]
The meaning of the last quarter is that in the absence of a rich son
the taker of the widow must pay the debts (of the deceased) on account
of the text of Yāj (II. 51) cited above. Kātyāyana says
A debt incurred for (the purposes of) the family by the slaves, the
wife, the mother the pupil or the son (of the head of the family) even
without his consent when he is gone abroad should be paid by him (by
the head of the family) This is the view of Bhṛgu.¹
Yājñavalkya (II 46) says
A woman is not bound to pay a debt incurred by her husband or son,
nor is a father (bound to pay a debt) contracted by his son nor the
husband (a debt) contracted by his wife unless the debt be contracted
for the purposes of the family
Kātyāyana says
That which has been promised or which was ratified after (it was
contracted) must be paid ²
Nārada (p 45 v 11) says
The father should pay that debt of the son which was contracted (by
the son) in serious difficulties (i. e in danger to life)
Yājñavalkya (II 48) says
Among herdsmen vintners dancers washermen, hunters, the husband
must pay the debts of his wife since their livelihood depends on the
wives ³
The same author (Yāj II 49) says
A *woman should pay a debt (of her husband) agreed to by her or
which was contracted by her jointly with her husband or a debt which was
contracted by herself alone she need not pay other debts ⁴
A woman taking the estate shall pay debt (of the deceased) even when
she did not agree to it. To the same effect is Kātyāyana:
A wife who was addressed by her husband when about to die 'you

1. This verse and the following one of Yāj. are quoted in Virasvami v Appasvami
   1 Mad. H. C. R. p. 375 at p. 379 n (where it was held that, when a husband married a
   second wife and the first wife left him, the first wife had no implied authority to borrow
   money for her support) Compare Manu VIII. 166, Yāj. II 45, Nār. p. 45 v 12 and Bṛ
   p. 329 v 50
2. This verse refers to a debt not contracted for the purposes of the family but is an
   individual debt which another member of the family (such as the father or brother) was
   not bound to pay unless he promised at the time that he would pay it or unless he ratified it.
3. This is quoted in Raghunathji v Bank of Bombay 31 Bom. 72 at p. 78. Compare
   Nārada p. 47 v 19 and Viṣṇu VI. 37 for the same rule.
4. This verse is quoted in 1 Bom. 121 at p 121. In Narotam v Nanka 6 Bom
   473 (where most of the texts as to a woman's liability for husband's debt are discussed)
   it was held that a married woman who contracts a debt jointly with her husband is
   liable to the extent of her strīdhana only and not personally
   P 189 (text)