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

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 ),

means experts ācāryaḥ means those`

• L28: who introduce new methods Bṛhaspati ( p. 341 v 29 ) says
• L29: The headman among a number of workmen jointly building a mansion (looks like jountly in print: jountly)
• L30: or temple or making utensils required for religious worship is entitled to two
• L31: shares ²
• L32: The same author ( Bṛhaspati p 341 v 30 ) says
• L33: The same rules have been declared by the good for dancers but one
• L34: who beats the tune ( while others sing or dance ) gets half a share while
• L35: the singers get equal shares ( with the dancers ) ³
• L36: 1 Compare section 251 of the Indian Contract Act.
• L37: 2 Two shares — The headman gets as wages double of what other workmen get.
• L38: The reading cārmikopaskarāṇi ( articles of leather ) is bad, particularly when it has to be
• L39: placed in juxtaposition to temples.
• L40: 3. The chief dancer gets two shares like the chief among builders.
• L41: `P 202 (

S VIII 4-IX. 2 ] JOINT UNDERTAKINGS OR PARTNERSHIPS 231
M. p. 122 ll 1-22 ]
Kātyāyana says ¹
If any one from among them while they are scattered about (for
pillage) is caught, then* they should contribute (or bear) according to
their shares towards the payment of the ransom for securing his release
This is the settled rule as regards all that engage in (a joint) under-
taking without (previously) defining their shares, such as traders,
husbandmen, thieves or artisans.
Here ends the section on joint undertakings.
Now begins (the section on) resumption of gifts
Nārada (p 128 v 1) says :
Where a man wishes to resume what he has improperly given, that is
a title of law called Dattāpradānika
‘Asamyak’ (in Nārada) is an adverb and means ‘in a way that is
forbidden’ The same author (Nārada p 128 vv 2, 4, 5) says
What may be given and what may not be given, valid gifts and invalid
gifts — in judicial matters, the law of gifts is said to be thus fourfold An
anvāhita, a yācitaka (loan for use), a pledge, joint property, a deposit,
son and wife, the whole property of one who has offspring and what has
been already promised to another man-these have been declared by the
(ancient) teachers to be inalienable (to be not proper subjects of gift)²
Here as a man has no property over the series of objects ending with
son and wife, the express prohibition of a gift with reference to them is mere
anuvāda (a laudatory or condemnatory re-iteration) as in the case of the
Vedic text ‘neither in middle regions nor in the heavens³’ This explanation
1 Nīlakantha introduces these verses rather abruptly In other works there are two
verses preceding the first verse quoted, which say that if certain adventurous spirits plunder
the territory of an enemy king at the bidding of their king, they should give one-tenth of
the booty to the king and divide the rest, that the head of the plundering party should get
four shares, the intrepid ones three shares, the strong ones two and the rest one share each
2 The words ‘anvāhitā, yācitaka, ādhi and nikṣepa’ have already been explained,
‘son and wife’—these must be regarded as one item Nārada (p 128 v 3) says that what may
not be given is eight-fold A person is not an absolute owner of what is anvāhita with him
or of yācitaka, of a pledge, deposit or of property jointly owned with others or of son
and wife
3 One cannot make a gift of what one does not own Nīlakantha established above (text
p 92 and tr p 83) that there is no ownership in wife and son Therefore the six objects ending
with son and wife in Nārada could not be gifted away. But Nārada does say that they are
‘adeya’ (using the potential passive participial) This is not a prohibition (niṣedha)
properly so called, for a prohibition is made about something that might, in the absence
of the prohibition, follow as a matter of course There being no ownership in the
six things and it being well-known that a gift can be made only of that which is owned by
one, it is not necessary to prohibit Therefore this is not a proper niṣedha These words

• P. 202 (text)

282 VYAVAHĀRAMAYŪKHA [ S. IX. 2-3
[ M p. 122 ll 22-33
also explains the paryudāsa (proviso) contained in the text of Yājñavalkya
(II. 175) 'a man may give anything that does not cause detriment to one's
family except¹ wife and son'. The absence* of ownership in son and wife has
been already propounded in the discussion on ownership (p. 83 above). In
making a gift of these (that are mentioned in Nārada) not only will the
gift be invalid in law but the man will be liable to undergo an expiatory
penance as Dakṣa says with reference to these
That foolish man who makes a gift of these incurs the penalty of
expiatory penance.
Manu says
He who receives what may not be given and he who gives what may
not be given both of them should be punished like a thief and should be
only repeat what is already well-known, that is, they are merely an anuvāda (which
is a variety of arthavāda). Nīlakaṇṭha cites a Vedic example of a negative clause being
only an anuvāda and not a niṣedha properly so called. In Tai. S. V. 2. 7 we have
a sentence "The brahmavādins say 'fire should not be kindled on the bare ground, nor
in the middle regions nor in the heavens'". The rule about agnicayana is that fire is
to be kindled on gold and not on bare ground. It is not possible to kindle fire in the
middle regions nor in the heavens; therefore this prohibitory passage (nāntarīkṣe na divi)
does not forbid what possibly might be done. These words contain only an arthavāda
(of the anuvāda variety) and serve to belaud the kindling of fire on gold and censure
kindling on bare ground. This text is dealt with in Jaimini I. 2. 5 and X. 8. 7. Vide notes
to V. M. pp. 367-368 for further explanation. An arthavāda has three varieties: virodhe
guṇavādaḥ syād-ānuvādovadhārite | bhūtārthavādas-tad-dhānād-arthavādas-tridhā
mataḥ || When it is said 'Ādityo yūpaḥ' (the sun is the sacrificial post) it is an example of
guṇavāda as this is opposed to our perception, but the sentence has only a secondary sense
(viz. that both Āditya and yūpa are brilliant). When it is said 'agnir himasya bheṣajam'
(fire is an antidote to cold) it expresses what is well-known from the experience of our
senses. So this is anuvāda. When it is said 'Indra killed Vṛtra' it is bhūtārthavāda
since it is not opposed to any pramāṇa, nor is it known from any pramāṇa; it only
narrates a story.
1 When the negative particle na is employed in a passage the question often
arises as to its exact import. In some cases it has the sense of pratiṣedha (prohibition)
as in 'he does not take the ṣoḍaśi cup in Atirātra sacrifice'. Sometimes na has the
sense of an arthavāda, as in 'neither in the middle regions nor in the sky' discussed above.
In some cases na has the sense of paryudāsa (an exception or proviso). A Vedic
example is 'the snātaka should not see the rising sun', which passage is preceded by the
words 'tasya vratam' (his observances). An observance is something positive, there-
fore 'he should not see' &c. does not prohibit the seeing of the rising sun but only enjoins
that he should make a resolve not to see the rising sun. Yājñavalkya's rule is 'what a
man owns may be given'. The words 'except son and wife' constitute an exception. Just
as in Nārada's verses 'anvāhitam' &c. several things are declared to be adeya though
over the first six of them there is no ownership (and so the negative particle is construed
as an anuvāda) so Yaj. excludes son and wife from deya things though they are not of
the same nature as other things (over which there is ownership). This is the idea
conveyed by the words 'this explanation also explains &c.)' Vide notes to V. M. pp. 369-
370 for detailed explanation. Dakṣa enumerates nine things as adeya.
P. 203 (text)

S. IX. 4-6 ] RESUMPTION OF GIFTS 233
M. p. 122 l. 32-p 123 l. 16 ]
made to pay the highest amercement.¹
What may be given is thus declared by Bṛhaspati ( p. 312 v. 3 ) ·
What remains after (providing) for the food and clothing of the family
may be given.
Kātyāyana declares what must be given ( without fail ) ·
He who, having voluntarily promised a gift to a brāhmaṇa, does not
deliver it should be compelled to give it as if it were a debt and should
be fined the first amercement.
Gautama ( V. 21 ) says ' one should not give, even after promising to
give, to a man who does what is forbidden ' ( by the s'āstras ) Vyāsa forbids
the gift or sale of means of livelihood ²
Those who are born and those who are yet to be born and those who
are in the womb wish for means of livelihood; so no gift nor sale ( of vṛtti
' can be effected ).
Nārada ( pp. 128-129 vv. 3 and 8 ) sets out the various kinds of valid
and void gifts :
*Of valid gifts there are seven varieties and invalid gifts are of sixteen
varieties. The price paid for goods, wages, what is paid for pleasure
( from dancers or bards ), a gift through affection, a gift from gratitude,
a gift to a bride's kinsmen and gifts for charitable purposes-these are known
as valid gifts by those who have knowledge of gifts.
' Anugraha ' means ' dharma ' ( religious and charitable purposes )
Nārada ( pp. 129-130 vv. 9-11 ) says :
Invalid gifts are ( sixteen ) as follows · What has been given by men
under the influence ( or pressure ) of fear, anger, pangs of sorrow, or as a
bribe or in jest, or under misapprehension ( as to person or thing ), or
through fraud, or given by a child or by a fool or by one who is not his
own master, by one who is distressed, by one intoxicated, by one who is,
insane; or what is given from the desire of a reward thinking ' this man
will do me some good turn '; what is given through ignorance to an
undeserving person because it was proclaimed that he was a worthy
person, what is given for a purpose which is really sinful ( though
thought to be meritorious )—all these are known to be invalid gifts ³

1. Manu VIII. 138 lays down 1000 paṇas as the highest amercement, 500 as middle
   and 250 as first, and Yāj. I. 366 prescribes 1080 as the highest fine, half of it as mid-
   dling and quarter of it as first or lowest
2. ' Adharmasaṃyukta ' in Gautama means one who is guilty of visiting a prosti-
   tute and such other censurable conduct. ' Vṛtti ' — Mandlik takes it in the modern sense
   of ' a religious office such as that of a village priest ' by which a man makes his livelihood,
   but it is not necessary to do so
3. In Javerbai v Kablibai 15 Bom 326 at p. 336 it was said that Nīlakaṇṭha does
   not place a conditional gift amongst those which are essentially void and that in the works
   of other Hindu writers the word ' upādhi ' usually implies fraud and not merely condition.
   With the last two in Nārada compare Manu VIII. 212.

• P. 204 ( text ).
  V. M. 30

234 VYAVAHĀRAMAYŪKHA [ S. IX. 7 10
[ M. p.128 l. 27 p.124 l.28
Ruk means ' pain The construction is by those who are under
the influence of pain caused by fear and the rest ; i. e. the meaning is
given by one who was oppressed by the fear of being beaten &c ; in the
same way what was given ( to others ) through anger against brothers with
the idea that loss may be caused , vyatyāsaḥ is when a man intending
to give silver gives gold through mistake chalayogataḥ occurs when
( for example ) knowing that a king wanted to give a cow to Devadatta it
was given to another who dressed himself like Devadatta even though the
recipient was a worthy man Kṛtaḥ means one whose mind is restless
through disease , mattaḥ means intoxicated by some intoxicating drug ,
unmattaḥ means affected by wind ( delirium ) apavarjitam means
given what was given with the thought he would do me a good turn
to one who does not do it what was given with the idea that one ( the
donee ) will employ it for religious purposes but who employs it for sinful
purposes These ( gifts ) return ( to the donor ). Kātyāyana says
' What is given through lust or wrath or by those who are dependent
by those distressed by those frightened by lunatics or by those who are
infatuated or what was given for avoiding ( the consequences of ) lapses
( from the right path )—these may be taken back ²
Kāmāt means for seducing the wife of another , klībaḥ
means one frightened , the meaning of vyatyāsa dattam is bribe.
What is promised as a bribe to a man for accomplishing a certain object
need never be given even though the object be accomplished If the bribe
were given before ( the object was accomplished ) it should be returned
by force ( to the giver ) and a fine eleven times as much ( as the
bribe ) should be levied. This is what the followers of Garga and
Manu say ²
The same author ( Kātyāyana ) describes the nature of a bribe
That is said to be utkoca ( a bribe ) which is obtained by those, viz. by
giving information about a theft about a felon, about one who breaks the
rules of decent conduct about an adulterer by pointing out those who
are of bad character by spreading false reports about a person ³
Manu ( VIII 165 ) says
A fraudulent mortgage or sale, a fraudulent gift or acceptance and
everything else wherever ( the king or judge ) finds deceit-all these he
should declare to be void.

1. Compare Gautama V 23 and Bṛ p. 313 vv 9-10.
2. These two verses are quoted in Shri Sitaram v Shri Harihar 35 Bom 100 at
   p 180 where it was held that if an adoption was induced by a bribe given to a widow the
   bribe was an illegal payment and cannot support a sale or gift.
3. Giving information about a theft = either suppressing information about a
   person who is really a thief or threatening a person that he would be reported as a thief

• P 205 ( text )

B. IX-10-X. 1 ] RESUMPTION OF GIFTS 235
M. p 131 l. 23-p 134 l. 1.* ]

• • 'Yoga' means 'fraud'; 'yutā' means 'in whatever other tran-
    saction'. The meaning is that 'all that returns (to the donor) when the
    fraud vanishes (i. e. detected)'. Kātyāyana says :¹
    If a gift was promised by a man for a religious purpose, whether when
    in good health or when afflicted with disease, the son should be made to
    pay it, if the father (the promisor) die without actually handing it over;
    there is no doubt on that point.
    Further elucidation on this point will be found in my revered father's
    Dvaitanirṇaya.
    Here ends (the section on) resumption of gifts.
    Now begins (the section on) the breach of a contract of service.
    Nārada (p. 131 v. 1) says:
    When a man having agreed to serve does not carry out the agreement,
    it is termed a breach of the contract of service, a title of law.
    Bṛhaspati (p. 345 v. 10) says, that servants are of three kinds:
    The armed fighter is declared to be highest, the cultivator the middling
    one, the porter is declared to be the lowest and so is (a servant)
    employed in household work.²
    Nārada (p. 135 v. 24) says:
    One who is appointed over all (servants) and (to supervise) over the
    household should also be regarded as a labourer and he is known to be

1. It was said above that a gift by one who is 'ārta' is void, an exception to that is
   stated in this verse. The only case where an incomplete gift not actually made but remain-
   ing only in promise was enforced by the courts in ancient India are a gift promised to a
   brāhmaṇa (vide Kātyāyana quoted above on p. 233) and a gift for a religious purpose. This
   verse contains the germ of the idea of a will since here the mere declaration of the inten-
   tion of a man to give for religious purposes is made enforceable after his death. In modern
   times a mere gift for dharma without specifying any particular object is declared to be
   void for uncertainty. Vide 6 Bom. 24, 11 Bom. 482, 17 Bom. 351, 18 Bom 136, 23 Bom.
   725 (P. C.) at p. 735 (= 26 I. A. 71). But this is opposed, as pointed out in 30 Mad. 340
   to the spirit of ancient Hindu Law. Vide Manu IV. 227 for dharma meaning 'iṣṭa'
   (religious purposes) and 'pūrta' (charitable purposes). This text of Kātyāyana is the
   basis of the Hindu Law of religious Trusts. Vide Ghelabhai v. Uderam 36 Bom. 29 at
   p. 35 (where the verse is quoted) and Bhupati Nath v. Ram Lal 37 Cal. 128 (F. B.) at
   p. 187 (where also Kāt. is quoted). In many of the earlier reported cases it was laid
   down as a general proposition that under Hindu Law a gift was invalid without possess-
   ion. Vide 4 Bom. H. C. R. (A. C. J.) p. 31, 10 Bom. H. C. R. 491. But since Kalidas v.
   Kanhaya Lal L. R. 11 I. A. 218 it has been held that possession is not absolutely necessary
   to constitute a valid gift under Hindu Law. In Bhaskar v. Sarasvatibai 17 Bom. 486
   (at p. 491) it is said (approving Mayne) that Hindu Law properly so called appears to
   lay little stress on any such rule as applicable to gifts.
2. Compare Nār. p. 131 v. 23 for the same three classes and examples.

• P. 206 (text).