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

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)

$\left.\begin{matrix}S. V. 4. 20-21
N. p. 116 ll. 9-21\end{matrix}\right]$ RECOVERY OF DEBTS 221
should pay my debts ' should be made to pay (the debts of her husband).
The woman should pay the assets that came to her.¹
Nārada ( p. 47 v. 20 ) says :
If a woman who has a son forsakes her son and goes to live with
another man, her son alone should pay all her debts if she has no
property.²
This verse refers to a son who has taken the assets ( of his father ). Nārada
( p. 42 v 3 ) says :
That debt which was contracted for the family by an undivided uncle,
brother or mother must be discharged by all the sharers in the assets ( of
the family ).³
In regard to the discharge of debts when the creditor or his sons and
the like do not exist Nārada ( p 69 vv. 112-113 ) declares the mode :
Whatever is to be paid to a brāhmaṇa creditor, who is no more
together with his family ( i. e. neither he nor his children are alive )
should be given to his kinsmen and in default of them to his bandhus.⁴
Where there are neither kinsmen, nor relatives nor bandhus, it should
be paid to (other) brāhmaṇas ; on failure of even these ( other brāhmaṇas)
he must cast it into the waters.
* Prajāpati also says :
On failure of the bandhus, ( the debts owed to a brāhmaṇa ) should
be given to brāhmaṇas or thrown into the water ; for, whatever wealth
has been thrown into the water or fire is of benefit in the next world.
When, however, after the ( amount of a ) debt has been thrown into the
water or the like the creditor returns, he shall surely obtain it.
Here ends the section on recovery of debts.

1. The reading in the text is rather difficult to construe. The reading of the Vīr.
   ' dhanam yadyās'ritam striyā ' is better and means ' if the husband's assets came to the
   woman '.
2. Vide notes to V. M. p. 349 for various explanations of this verse. The son who
   has property should pay his mother's debts, even though she forsakes him, if she is poor.
3. Compare Yāj. II. 45, Manu VIII. 166. Vide Bhala v. Parbhu, 2 Bom. 67 at p. 72
   and 43 All 604 at p. 606 ( where when a woman succeeded as mother to her deceased son
   and alienated certain property to pay off her husband's time-barred debts it was held that
   she had no authority to do so ).
   4 ' Sakulyas ' are members of the same gotra as himself ( i. e uncles and their
   sons, grand-uncles &c ) and bandhus are cognates like the maternal uncle and his son.
   If the creditor was a kṣatriya, vais'ya or s'ūdra, then instead of throwing the debt into
   water, it was to be paid to the king. The king was the ultimate heir except to the
   wealth of a brāhmaṇa.
   * P. 130 ( text )

122 VYAVAHĀRAMAYŪKHA [ S. VI. 1-3¹ / M. p.115 l.29-p.116 l. 16
( [ Now (the treatment of) deposit.¹
Nārada (p. 120 v 1) says
Where a man without any suspicion entrusts any property of his own
to another in confidence, that is said by the wise to be the title of law
called deposit. What is deposited under seal without being counted or
being shown should be known as upanidhi and nikṣepa is known to be
made after counting (the contents).
Bṛhaspati (p. 333 vv. 6 and 9) says:
'The merit which accrues to a man making a gift of gold, baser metals,
clothes and the like belongs to him who preserves a deposit or who
protects one who seeks protection. A deposit must be returned to that
very man who kept it in deposit and in the same manner and state (in
which it was deposited). It must not be delivered to one who claims
propinquity to the depositor.

• 'Nyāsaḥ means nikṣepa (deposit). pratyanantaraḥ means 'a
  near kinsman of the depositor'.² Manu (VIII. 191) says:
  He who does not return a deposit or demands what he never deposited
  shall both be punished like a thief or should be made to give a fine
  equal to the thing bailed.
  Bṛhaspati (p 333 v. 11) says:
  If the depositary (or bailee) were to allow the deposit to perish by
  making a difference (in the care bestowed upon it as compared with his
  own chattels) or by his indifference or were not to return it when
  requested to do so he shall be made to pay it (its value) together with
  interest.
  Bhedaḥ means making a difference in the care bestowed upon one's
  own property (and on a deposit); therefore no blame attaches (to the
  depositary) if (the deposit) be destroyed through indifference together
  with the depositary's own goods.³
  Yājñavalkya (II. 67) says:
  If the (bailee) of his own sweet will (i.e. without the bailor's consent)

1. The terms nikṣepa, upanidhi and nyāsa are often used as synonyms, but were
   also differentiated in meaning. Nikṣepa is a deposit entrusted to a man in his presence
   after counting before him the coins &c.; upanidhi is the deposit of articles enclosed in a
   sealed box or envelope (the articles not being counted in the presence of the depositee);
   nyāsa is a deposit not made in the presence of the depositee but handed over to persons
   in his house for being given into his custody. Vide Vīr. p. 361 (for all three) and Mit.
   on Yāj. II. 67 (for nyāsa and nikṣepa). Yāj. II. 65 defines upanidhi as done by the Mit.
   Manu VIII. 185 employs both terms, nikṣepa and upanidhi. Vide notes to Kāt. v. 592.
2. In Manu VIII. 185 the same rule and the word pratyanantara occur and
   Kullūka explains that while the depositor is alive it should not be returned to his son or any
   one else who would be the owner immediately after the depositor.
3. Compare this with section 151 of the Indian Contract Act.
   P. 191 (text),

S. VI. 3-6 ] DEPOSIT 223
M. p. 116 l. 11-p 117 l. 2 ]
makes a living (by the use of the deposit) he should be fined and made
to return the deposit with interest
'Ājīvan' (in Yāj) means 'subsisting by enjoying it, or by letting
it out at interest,' 'udayah' means 'interest'. Kātyāyana mentions a special
rule about interest:
A deposit, the balance of interest, purchase and sale—these if not return-
ed (or paid) when demanded bear interest at five per cent (per month).¹
Manu (VIII 192) says:
(The king) should inflict on a depositary who denies (or conceals) a
deposit a fine equal to it (in value), specially so should the king (fine
one) who conceals (or denies) an upanidhi (deposit of a sealed box &c)

• Bṛhaspati (p. 333 v. 10) says
  If a deposit were to be destroyed together with the goods of the bailee
  through the adverse act of fate or the king, then no blame attaches (to
  the bailee).
  Yājñavalkya (II 66) says:
  (The bailee) should not be made to return what was carried away (or
  lost) by fate, the king or thieves²
  Manu (VIII 186) says
  A depositary who of his own accord returns (the deposit) to the near-
  est (relative) of the deceased (depositor) should not be proceeded against
  by the king nor by the relatives of the depositor.
  'Pratyanantaraḥ' means 'the nearest'. The meaning is that he
  (depositary) should not be proceeded against (or harassed) for more in the
  absence of evidence Bṛhaspati (p 334 v. 15) extends all these rules about
  nikṣepa to other matters also:
  This same law is declared in the case of a bailment for delivery (to a
  third person), a loan for use, an article delivered to an artisan (for
  being worked up), a pledge, a person who seeks protection.³
  'Anvāhitam' is that which is handed over to another person with the
  words 'so and so deposited it with me and you should deliver this to him';
  'yācitaka' is an ornament or the like borrowed on the occasion of a marriage
  or the like for show; 'śilpinyāsa' means 'what is made over to a gold-
  smith or the like for being made into an ear-ring or the like'. Nārada (p.
  123 v 14) also says:
  ‡The same rules apply in the case of yācita, anvāhita and the like and
  in deposits with artisans, in nyāsa and pratinyāsa

1. This verse occurs above (text p. 169 and translation p 199)
2. The mention of fate and the king is illustrative of every calamity that is irremedi-
   able or irresistible.
   3 'Bailment for delivery' where A makes a deposit with B and B hands it over
   to C for being delivered to A, this is anvāhita. Vide Mit. on Yāj. II 67.

• P. 192 (text). ‡ P. 193 (text).

161 VYAVAHĀRAMAYŪKHA [ S. VI. 6-10
[ M. p. 117 ll. 2-30
' Pratinyāsaḥ '¹ is when the owner deposits with a person who redeposits it
with another ² Kātyāyana ordains the restoration in certain cases of deposit
made to an artisan even when it was destroyed by an act of fate or the king
' If an artisan agrees to work up a deposit in a definite number of days
and keeps it with him beyond those days he should be made to pay ( the
price of ) it even if it were gone ( lost ) through the act of fate '
Nārada ( pp 150--151 vv 8-9 ) says
Wearing apparel loses the eighth part of its value on being washed once
( for the first time ) the fourth part ( on being washed ) twice ( for the
second time ) the third part ( on being washed ) for the third time and
one-half on being washed for the fourth time. After one half of the
original value is lost one fourth of the value will be reduced in order
'( for each further washing )'³
Yājñavalkya ( II 288 ) says
A washerman on wearing the garments of another ( handed to him for
washing ) shall be fined three panas and ten panas in cases of sale
hiring out pledge loan for use ( without hire ).
Avakrayaḥ means delivery to another for hire ādhānaṃ
means making a pledge of it The same author ( Yājñavalkya II 178 )
states the rules about the reduction ( of weight ) in metals other than gold
when they are heated in fire
Gold is not reduced ( in weight ) by fire in silver ( the reduction ) is
two palas in a hundred in tin and lead it is eight ( palas in a hundred)
and in copper it is five and in iron ten

• In the case of reduction ( in weight ) of silver and the rest exceed-
  ing these ( limits ) the goldsmith and others are to be fined. The same
  author ( Yāj. II 179 ) declares a special rule as to increase ( in weight ) in
  certain cases when yarn has been given for ( being woven into ) cloth
  In the case of woollen and cotton yarns the increase ( in the weight )
  is ten palas in a hundred in ( cloth of ) middling quality it is five
  palas ( in one hundred palas ), in ( cloth of ) fine quality it is declared
  to be three palas ( in one hundred )
  The same author ( Yāj. II 180 ) declares that there is a reduction ( of
  weight in cloth ) in certain cases
  A reduction of a thirtieth part is allowed in the case of cloth on which
  figures are drawn and of cloth embroidered with hair there is neither reduc-
  tion nor increase ( of weight ) in the case of silken cloth or bark cloth.
  1 According to the Mit. on Yāj. II. 67 pratinyāsa is a mutual deposit, both sides
  delivering articles for safe custody as occasion arises. The Mayūkha takes it in the sense
  of a deposit of a deposited article
  2 Compare section 101 of the Indian Contract Act
  3 If clothes are washed only once and then lost by the washerman, he has to pay
  their price minus one-eighth.
  P 131 ( text )

$\left.{l}S. VI. 10-VII 1
M. p.117 l.30-p 118 l.12 \right]$ DEPOSITS 225
'Kārmike' means 'in working figures of the svastika and the like
with fine silken thread on cloth already woven'. If something was deli-
vered to an artisan (for being worked up) and a time was fixed (at the
end of which the finished article was to be delivered) and (the owner of
the raw material) made a demand before the time fixed had elapsed, the
artisan would not be liable even if the article were lost when not returned
on demand. The same author declares this
If an artisan (after the owner of raw materials made them over to him)
for a particular purpose or after fixing a time (for delivery of the finish-
ed article) were requested (to return the materials) when the article
was only half finished, he (the artisan) is not to be made to deliver the
article or its price because (the finished article) was not obtained
(through act of God or king)¹
The reverse of this is laid down by the same author
When the time (fixed) has elapsed and the purpose is served, if the
artisan does not deliver it though requested, he would have to pay the
price, if the article be destroyed or stolen

• The same author says
  He who having taken a yācitaka (loan for use) does not deliver
  it even on demand should be restrained and forcibly made to return it
  and fined if he does not return.²
  Here ends the section on deposits.
  Now begins 'sale without ownership'
  Vyāsa says:
  What is borrowed for use or what is entrusted to a man for being
  delivered to a third person or a deposit or the wealth of another that is
  stolen–when these are sold behind the back of the (true) owner, it is known
  as sale without ownership.³
  Kātyāyana says

1. This and the following two verses ascribed to Yāj. here are not found in the printed
   text of Yāj. and are ascribed to Kātyāyana by other writers. The Sm C. and Vīr hold
   that this verse and the next apply to yācitaka and explain them differently, vide notes
   to V. M. pp. 355--356. Compare section 159 and 160 of the Indian Contract Act.
2. The lender had not to resort to the several means of persuasion &c. as in the case
   of a debt, he could at once resort to bala and if the borrower did not deliver even then the
   king would fine him.
3. 'Sold'—this includes a gift and a mortgage.

• P. 195 (text)
  V. M.29

226 VYAVAHĀRAMAYŪKHA [ S. VII. 1-4.
[ M p. 118 ll. 12-21
A sale gift or pledge made without ownership should be rescinded (or
cancelled)¹
Asvāmī (in Kātyāyana) is a separate word and is an adverb Nārada
(pp 144-45 vv 2-3) says :
A purchase effected in public is blameless, (but) the purchaser incurs
the charge of theft by purchasing clandestinely If a man buys from a
slave who is not authorised by his master (to sell) or from a rogue (a
bad character) or in secret or at a low price or at an improper time he
is as guilty as a thief²
Tad-doṣaḥ means the guilt of a thief Yājñavalkya (II 171)
says
"Proof of the ownership of a thing lost (or stolen) must be given
(by the owner) by means of title or possession but otherwise on
failure of such proof by him he should pay to the king a fine equal to

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

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

• P. 127 (text

228 VYAVAHĀRAMAYŪKHA [ S. VII, C. 10
[ M. p. 119 l. 20-p. 120 l. 14
'Niveśaḥ in (Marīci) means ' the residence of the vendor Nārada
says
One should enjoy what is permitted (by the real owner) whether
women, cattle or land but he who enjoys without being offered (or per-
mitted) should be made to pay the profit of such enjoyment

• Uddiṣṭam means permitted bhuktabhogam means hire (or
  profit) in accordance with the enjoyment Yājñavalkya (II 178) says
  The owner of a thing that was lost or stolen and was brought to the
  king by the toll-gate keepers or by guards shall recover it (from the king)
  within one year after that the king shall take it ¹
  As regards what Manu (VIII. 30) says
  The king should keep in his custody for three years property the owner
  of which has disappeared (or cannot be found) the owner can take it
  (at any time) within three years beyond three years the king may
  retain it
  that refers to property of which a brāhmaṇa learned in the Vedas is the
  owner The same author (Manu VIII 33) says
  The king remembering the righteous conduct of the good should take a
  sixth tenth or even a twelfth part of property which had been lost and
  was then found (by the king or his officers) ²
  Here in the first year (the king) should give up the whole of the pro-
  perty in the second year he should take a twelfth share and then give up the
  property, in the third year a tenth part in the fourth year and the rest a
  sixth. The words beyond (three years) the king should retain it are
  meant only to permit the disposal of the thing after three years if the owner
  does not come (within three years) If the owner comes, it must be re-
  stored to him even if disposed of This is what the Mitākṣarā says. This,
  however holds good only if the owner be unknown but when there is
  certain knowledge so and so went away forgetfully leaving this property
  then he recovers it even after three years and the king also has no authority
  to dispose of it. But he may take a certain portion for himself (for safely
  keeping the articles) Yājñavalkya (II 174) mentions the remuneration
  (or wages) for guarding for a day animals belonging to another that were
  found straying
  (The owner of straying animals) should pay four paṇas if the animal
  be of the species with single hoofs, five for human beings, two paṇas for
  a buffalo camel and cow and one fourth of a paṇa for goats and sheep.
  But what was consumed by them must be paid for besides (the above)
  On a treasure being found Yājñavalkya (II 34-35) says

1. Compare Gautama X. 36-38.
   2 Various explanations are given as to when a sixth, tenth or twelfth share was to
   be taken. Vide notes to V M. p 301.

• P 109 (text). ‡ P 120 (text)

S. VII. 10-VIII. 1
M. p. 120 l. 25-p. 121 l. 9 ] FINDING OF TREASURE 229
The king having himself found a treasure¹ should give half of it to
brāhmaṇas; but a brāhmaṇa ( finding treasure ), if learned should take
( appropriate to himself ) the whole, since he ( learned brāhmaṇa ) is
master of everything When a treasure is found by anyone else, the king
should take a sixth part of it;² one who does not inform the king of the
find should be made to restore ( the treasure to the king ) and also pay
a fine.³
But when anyone proves by some distinctive mark or weight or other-
wise that the treasure ( found ) is his, then the king should deliver it to him
after giving a twelfth part to the finder and after taking a sixth for himself,
as Manu ( VIII 35 ) says :
When a man avers truthfully and says ' this is mine ', the king should
take a sixth share from him and a twelfth also.
*The twelfth share is for the finder On the subject of property stolen by
thieves the same author ( Manu VIII. 40 ) says
Property stolen by thieves must be restored by the king to the owner
to whatever varna he may belong, if the king appropriates it to his use
he incurs the sin of the thief ⁴
Where the king is unable to recover property ( from thieves ) Krsna-
Dvaipāyana ( Vyāsa ) says .
If unable to recover property stolen by thieves, the king when so
powerless shall make it good from his own treasury ⁵
Here ends the discourse on sale without ownership.
Now begins the section on joint undertakings ( or concerns ).
Nārada ( p 124 v. 1 ) says
Where traders and others carry on business ( or transactions ) jointly,
that is declared to be a joint concern, which is a title of law

1. Nidhi means a treasure buried in the earth. Compare Manu VIII. 37 for a
   proposition similar to ' he is master of everything '
2. The Mit interprets this part differently as ' the king should give a sixth part to
   the finder ' ( other than a brāhmaṇa or king ) and keep the rest for himself. The Mit.
   quotes Vasistha III 13 in support Vide Gautama X 43-45 The interpretation in the
   text is more natural and follows Aparārka.
   3 Compare the Indian Treasure Trove Act ( VI of 1878 ) sections 4, 10-12, 20 with
   these rules
3. Compare Yāj. II 36, Gautama X. 46, Visnu III. 66,
4. Compare Gautama X. 47, Viṣṇu III. 67.

• P. 200 ( text ),