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

INDEX OF CASES XXV
40 Mad 651 163n 2
10 Mad 816 193n 2
41 Mad 146 215n 3.
41 Mad 1073 206n 3
42 Mad 711 215n 1 and 3
43 Mad 4 192n 1, n 2.
43 Mad 32 190n, 191n 1.
43 Mad 398 116n 4.
43 Mad 164 192n
43 Mad 876 113n, 117n 1
44 Mad. 114 164n 1.
44 Mad. 121 165n
44 Mad 656 116n 4
44 Mad 753 165n
45 Mad

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SYNOPSIS OF TRANSLATION
Introduction and Judicial Procedure ... . 1-22
Introductory verses . ... 1-2
Definition of vyavahāra ... ... ... 2
Eighteen vyavahārapadas (titles of law) ... 2
Sabhā (hall of justice) ... . 3
Members of the hall of justice . 4-5
Prāḍvivāka (judge), qualifications of . 4-5
Other tribunals than the royal court of justice ... 5-6
Time of holding court of justice . 6
Conflict between dharmaśāstra and arthaśāstra ... 6
Conflict between two smṛti texts ... 6-7
Varying usages of several countries ... ... 7
Mode of questioning complainant . ... 8
Arrest or restraint of defendant ... 8-9
What persons should not be arrested as defendants ... 9
Who are not to be summoned to attend personally ... 9-10
Fines for not complying with summons ... 10
Agents of parties to causes ... ... 11
Contents of a proper plaint . ... 12
Amendment of plaint . ... 13
Defective plaints described ... ... 13-14
Defendant's reply, varieties of ... ... 14-15
Reply of special plea ... . . 14-15
Reply of res judicata .. ... . 15
Faulty reply of defendant ... ... 15
Burden of proof in different replies ... ... 16-17
Who is to begin .. 17
Four stages of judicial procedure ... ... 17-18
Change of pleading ... ... ... 18
Sureties for parties ... ... ... 19
Who cannot be sureties . ... 19-20
Indications of a false party or witness ... 20
Means of proof, documents, witnesses and possession 20-22
Human and divine proof ... ... 21-22
Documents .. ... ... ... 22-27
Three kinds of documents ... 22
Seven kinds of popular documents ... ... 23
Royal documents . ... ... 25
Possession . . ... 27-30
Witnesses . ... . ... 31-41

XXVIII VYAVAHĀRAMAYŪKHA
Qualifications of witnesses 31
Who cannot be witnesses 33 34
Pointing out the faults of witnesses 34 36
Means of ascertaining false witnesses 37
Mode of swearing witnesses 39
Ordeals 41 75
Kinds of ordeals 41
What ordeals are appropriate in which matter 42 43
Persons fit to undergo various ordeals 44 45
Agents for undergoing ordeals .. 46
Time for ordeals 46 47
Place for ordeals .. 47
Rites common to all ordeals 48 50
Balance ordeal - 50 60
Fire ordeal - 60 65
Water ordeal 66 69
Poison ordeal 69 70
Kośa ordeal 70 71
Rice ordeal - 71 72
Ordeal of heated mass of gold 72 73
Ploughshare ordeal 73
Ordeal of image or picture of dharma - 73 75
Oaths 75 76
Determination of heritage 77 86
Discussion about ownership 77 85
Whether ownership is by birth 78 81
Dāya, meaning of .. 85 86
Sapratibandha and apratibandha dāya 86
Partition ... 86 102
Time of partition 86 89
Shares on partition .... 89 92
Mother's share on partition 93
Rule of division per stirpes 94 95
Sons of wives of different castes 96-98
Share of śūdra's illegitimate son 99
Share of son born after partition 99 101
Provision for marriages of brothers and sisters 101 102
Sons, principal and secondary 103 104
Adoption 104 133
Definition of dattaka - 104 105
Adoption of eldest son 107 108
Girl cannot be adopted 108 109
Mode of adopting a son 109 114
Śūdras and women can adopt 114 115

SYNOPSIS OF TRANSLATION xxix
Permission for women to adopt ... ... 117-118
Dattaka of two kinds ... .... 120-129
Dvyāmuṣyāyaṇa son .. ... 124-126
Sapinda relationship of kevala dattaka .. 129-131
Rites of adoption . .. . 131-133
Partition .. . . ... 143 ff
Partition of debts . . . . .. 34-1351
Impartible property ... ... .. 135-143
Self acquisition . ... 136
Gains of learning . . 136-138
Property impartible by nature . . 139-142
Indications of partition ... . 144
Religious duties of coparceners . . . 144-149
Sapratibandha Dāya ... ... 150-167
Order of succession to sonless man .. 150
Widow as heir ... ... 150-155
Daughters as heirs . ... 155-156
Daughter's son as heir . 156
Father as heir ... ... ... 156
Mother as heir ... . ... 156-157
Full brother and his son ... ... 157-158
Gotrajas as heirs ... ... ... 159-163
Grandmother ... ... : 161
Sister as gotraja ... ... 161
Paternal grandfather and other gotraja heirs ... 162-163
Samānodakas 163
Bandhus as heirs . . . 163-166
Strangers as heirs . 164
King as ultimate heir . .. 164
Heirs of ascetics . . . 165
Re-union . . . 168-176
Who can re-unite .. . 168
Partition among re-united members 169
Succession to re-united member . . 169-176
Strīdhana 176-191
Kinds of strīdhana . . 176-178
Saudāyika explained . . 180
Dominion over strīdhana .. 181-182
Heirs to strīdhana . .. 182ff
Yautaka strīdhana . .. 184
Approved and unapproved forms of marriage 187
Heirs to a maiden 191
Exclusion from inheritance 191-197
Recovery of debts . 197-221

XXX VYAVAHĀRAMAYUKHA
Rates of interest allowed 198 202
When no interest allowed 199
Maximum interest allowed 200
Rule of damdupat 202 202
Pledge 201 206
Sureties 206 209
Methods of recovering debts 209 213
Evil results of not paying a debt 214
Who are liable to pay another's debts 214 221
Descendant's liability to pay ancestor's debts 215 219
Deposit 222 225
Sale without ownership 225 229
Joint undertakings or partnerships 229 231
Resumption of gifts 231 235
Breach of contract of service 235 239
Kinds of slaves 236 238
Non-payment of wages 239 241
Transgression of conventions 241 243
Rescission of purchase 243 244
Non-delivery of sold chattel 244 245
Dispute between master and herdsman 245 247
Boundary disputes 247 251
Abuse 251 253
Assault 253 255
Theft and robbery 255 259
Heinous offences 260 265
Who is an ātatāyin 261 263
Whether an ātatāyī brāhmaṇa could be killed 261 263
Adultery 265-270
Duties of husband and wife 270 271
Gambling and prize-fighting 271 272
Miscellaneous matters 272 275

ERRATA
N B — A few obvious misprints have not been given here.
18 n1 read ' pas'ustribhyo ' for ' pas'ustryo '
36 ll 26-27 read ' that (for not pointing out of the faults earlier) for
' that for not pointing out the faults earlier '
58 lines 1 and 16 read 18 for 19
94 n2 read 2 Bom. 191 for 2 Bom 401
97 n1 read ' anuloma ' for ' pratiloma '
175 l 10 read ' since from another text ' for ' since another text '
183 n read ' p. 119 n1 ' for ' p 719 n1 '
199 n read ' Sundaram v. Ramsamia '
212 n2 read ' Yāj. II 11. ' for ' Yāj. II. 12 '

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THE
VYAVAHĀRAMAYŪKHA
Composed by
BHATTA NĪLAKANTHA
1 Having spoken of the ways of royal policy and fittingly bowed to the
lotus-like feet of the refulgent (Sun), Nīlakantha composes a little (work) on
the disposal (decision) of vyavahāra (judicial proceedings)
2 I contemplate my revered (father) S'aṅkara, the only leader among
the best of Brāhmanas, who looked after the religious practices (of the peo-
ple), who was endowed with happiness, who was the teacher of all in Kās'ī
(Benares)
3 That highest Person, who appeared in two forms in this world for
propounding two conflicting paths (systems), has here (now) accepted the
non-difference of (the views of the two) Mīmāmsakas, (being born) in one
form as Bhatta S'aṅkara
4 There are certain (doctrines) here which are accepted by some who
lead (people) astray; I have discarded them as they are baseless On account
of this (discarding) there is no deficiency of treatment in this (work), wor-
ship does not become deficient by the absence of the flower of the sky
V 1 'Having spoken policy'—This refers to the composition of the Nītimayūkha,
which immediately preceded that of the Vyavahāramayūkha
V 2 This verse also applies to god S'aṅkara by means of Śleṣa (Paronomasia) The
words द्विजराज, वृष, शिवान्वित are paronomastic The verse (with S'aṅkara) means 'I contem-
plate (the god) S'aṅkara, who has the moon as the only thing (by way of decoration) on his head
who is the lord of the Bull, who is accompanied by Pārvatī (called S'ivā), who is the inspirer
of all in Kās'ī and who is an object of worship'. S'iva is the presiding deity of Benares
V 3 For detailed explanation of this verse, vide notes to V M pp 1—3 The two
Mīmāmsakas are Prabhākara and Kumārila Nīlakantha claims that his father explained
away the differences between the views of Prabhākara and Kumārila Mandlik's explanation
that the first half of the verse refers to S'ankara and Kumārila and that the latter half says that
S'aṅkarabhatta accepted the identity of the human soul with the divine essence propounded
by Vyāsa is far-fetched and wrong The doctrine of advaita was not propounded by
Mīmāmsakas properly so called and Vyāsa and his school are hardly ever designated
Mīmāmsakas.
V 4. Khapuspa (sky—flower) is a symbol of what is absolutely non existent Vide
notes to V. M. p. 3 for khapuspa.

2 VYAVAHĀRAMAYŪKHA [S. I. 1 1-4
[M. p. 1 l. 20-p. 2 l. 20
Vyavahāra is an action or operation that facilitates the exposure of
the wrong that is not known (at the time when the
Definition of operation begins as belonging to one) and that pertains
Vyavahāra to one out of the several persons that have a dispute
(about it), or it is an operation in which the plaintiff
and the defendant are the agents, in which possession, witnesses and (other)
means of proof are applicable (according to circumstances) and which helps the
establishment (of truth) in the midst of conflicting alternatives. Accord-
ing to the Madanaratna in the case of a reply of confession¹ (to the claim
of the plaintiff) the term vyavahāra is applied (only) in a secondary sense.
The latter part² (of the above definition) serves the purpose of excluding
(from the denotation of vyavahāra) vāda, vitaṇḍā and the like.
Now (as to) the titles of Vyavahāra. Now (as to) its divisions, Yājñava-
lkya says (2. 5)
If one invaded by others in a way that is in conflict with the smṛtis
and established usage complains to the king, that becomes a subject of
vyavahāra.
The word ādharṣitaḥ means ill-treated, despised.
Manu (8. 4-7) speaks of eighteen divisions of the subjects of vyavahāra.
Of them the first is (1) the non-payment of debts, (then) (2) deposit,
(3) sale by one who is not the owner, (4) partnership, (5) resumption of
gifts, (6) non-payment of wages, (7) breach of compacts or conventions, (8)
rescission of purchase and sale, (9) dispute between master and herdsman,
(10) rules about boundary disputes, (11, 12) harshness of bodily injury and
speech (i.e. assault and defamation), (13) theft, (14) violent offences,
(15) adultery, (16) duties of husband and wife, (17) partition, (18)
gambling and prize-fighting. These are the eighteen subjects here in the
sphere of vyavahāra.
'Anapākarma' means not giving. 'Anuśayaḥ' means repentance (i.e.
rescission). Dyūtam means playing by means of inanimate objects (like
dice), (while) samāhvaya means gaming by means of animate objects. In this
(above) passage adultery and harshness of speech and assault are separately

1. Reply of confession.—When a plaintiff lodged his complaint, the defendant had to
   give a reply which was of four kinds, viz. a total denial (mithyā), a confession or admission
   of plaintiff's claim (saṁpratipatti), a plea of cause (i.e. accepting the whole or part of the
   plaintiff's averments and meeting them with a counter-cause), a plea of res judicata (prāṅ-
   nyāya). When the defendant admits plaintiff's claim, there is no necessity to employ means
   of proof and to establish the truth by reasoning. Hence the definition of vyavahāra in
   which the plaintiff ... alternatives cannot primarily apply to such a proceeding.
2. The latter part, i.e., the words 'in which possession ... alternatives'. For
   explanation of vāda and vitaṇḍā vide notes to V. M. pp. 4–5. These are technical terms in
   Nyāya. In both there are disputants, but in vāda the pramāṇas are pratyakṣa, anumāna
   &c. and not possession &c. In vitaṇḍā (mere cavilling) there is no attempt to find out the
   truth, but there is simply a desire to ridicule and vanquish one's opponent.
   P. 2 (text)

S. I. 1. 4-6 TITLES OF LAW 3
M. p 2 l 20-p 3 l 15 ]
mentioned (from sāhasa) according to the maxim of the cattle and the bull¹,
though they are (mere) varieties of sāhasa according to the dictum of
Bṛhaspati ( p 359 v 1):
Sāhasa is of four kinds, viz killing a man, robbery, intercourse with
another's wife and harshness of two kinds
The nature of these eighteen (divisions) will be explained later on.
Now the summary of the fundamentals² of vyavahāra (judicial procedure).
Bṛhaspati ( p 279 v 18 ) says :
(The king) should construct a separate building in his fort, with water
and trees near it, ( and ) on the eastern side of it he should prepare the
court-room, facing the east and possessed of all the good characteristics (of
a sabhā).

• The same (i e sabhā) is (styled) dharmādhikaraṇa (hall of justice),
  as the text of Kātyāyana says
  That place, where the sifting of truth and falsehood after deliberation
  in accordance with dharmaś'āstra (the science of law) is authoritatively
  made is the dharmādhikaraṇa ( the hall of justice )
  Manu ( 8 1--2 ) says ;
  The king desirous of investigating judicial proceedings should enter the
  sabhā ( court ), being well-mannered and wearing a dress and ornaments
  befitting good breeding, along with ministers well-versed in state policy and
  with brāhmaṇas, ( and ) should look into the causes of the litigants.
  Yājñavalkya ( 2 1 ) says :
  The king, being free from anger and avarice, should investigate judicial
  proceedings along with learned brāhmaṇas in conformity with dharma-
  s'āstra
  ( The word ) ' nṛpaḥ ' ( means ) any one whatever ( of any caste )
  having authority to protect the subjects and not merely a ksatriya ( a
  man of the warrior caste ) Kātyāyana ( says )
  The king who looks into ( the judicial proceedings ) together with the
  judge, the councillors, the brāhmaṇas, the family priest and the sabhyas
  ( assessors, respectable men ) reaches heaven on account of ( his having
  followed ) dharma ( the dictates of righteousness )

1. ' The maxim of the cattle and the bull ' — For detailed explanation vide notes to
   V. M. p 6 When a man says ' let cattle be brought and bulls also ', this mode of expression
   is employed to draw special attention to the intractability of bulls, though the latter are
   included in the generic term ' cattle ' So robbery and adultery are separately mentioned
   apart from sāhasa by Manu, though they are varieties of sāhasa, in order to draw special
   attention to these important heads of vyavahāra.
2. The word mātṛkā means ' fundamentals, basis '. Jīmūtavāhana's work dealing with
   general rules of procedure and the means of proof is styled Vyavahāramātṛkā.

• P 8 (text)

4 ] VYAVAHĀRAMAYŪKHA [ S I 1 6-3
[ M p 3 l 15-p. 4 l. 0
In this passage (the word) brāhmaṇa (means) one who is not
appointed (as a member of the court to decide causes) while sabhyas
(assessors) are those who are appointed (by the king to decide causes)
And to the same effect it has been said (Nārada p. 36 v 2)
One who knows dharma, whether appointed or not must speak out
(what the decision should be¹)
Bṛhaspati (278 v 12) declares the definition of (prāḍvivāka) a judge —
He who in a controversy asks questions and also cross-questions and
who is the first to speak (to a litigant) in a sweet manner is therefore
known as prāḍvivāka

• Vyāsa declares the definition of amātya (councillor)
  The king should appoint as amātya a person of the regenerate classes who
  knows all the śāstras who is not avaricious, who utters what is just who
  is a brāhmaṇa who is wise and to whom the office comes hereditarily
  In this passage the word dvija (a man of the regenerate classes) is used
  again (even after the word vipra a brāhmaṇa) for the purpose of including
  a kṣatriya or a vaiśya (for appointment as minister²) in the absence of a
  brāhmaṇa To the same effect (18) Kātyāyana
  Where there is no learned brāhmaṇa, (the king) should appoint a
  kṣatriya or a vaiśya who is proficient in dharmaśāstra (but he) should
  carefully exclude a śūdra
  And Yājñavalkya (2-2) says as regards sabhyas (members of the court)
  The king should appoint as members of the sabhā (court of justice)
  those who are endowed with Vedic learning who are learned in dharma
  (law) who speak the truth who do equal (justice) to friend and foe
  As regards their number Bṛhaspati (p 278 v 11) says
  That sabhā (court) where are seated seven five or even three brāhmaṇas
  who are conversant with worldly affairs and who are learned in the Vedas
  and in dharma (law) resembles (in holiness) a yajña (sacrifice)
  The same author (p 279 v 14) says
  The king should appoint as gaṇaka (accountant) and lekhaka (scribe)
  two persons who are versed in the principles of grammar (śabda) and
  lexicography (abhidhāna) who are proficient in reckoning (casting figures)
  who are pure and who are acquainted with various alphabets
  1 On the words 'appointed and sabhya vide notes to V M. pp. 10-11
  2 Bṛhaspati, as quoted in the Vyavahāramātṛkā of Jīmūtavāhana says In a sacrifice
  is honoured Viṣṇu while in vyavahāra the king (is honoured) there (in sacrifice) the
  sacrificer is the successful (party) and the animal (sacrificed) is the vanquished party
  (as in a litigation) the plaint and the reply are the clarified butter and the conclusion is
  (havis) the offering the Śāstra (dharmaśāstra) is the Veda and the sabhyas are the sacrificial
  priests who receive dakṣiṇā (payment for acting as adjudicators)
  P 4 (text)

S. 1. 1. 9-10
V. p. 1 ll. 6-32 ] MEMBERS OF COURT 5
'Śabda' means the science of words (i. e. grammar); 'abhidhāna'
(means) a lexicon. Kātyāyana says:
There merchants should be appointed to listen (to the evidence) and
to decide what is just.
'Tatra' (means) 'in the court'. Bṛhaspati (p. 279 v. 15) says:
(The king) should appoint his own truthful man (servant) who will be
subject to the control of the sabhyas for summoning and looking after the
witnesses, the plaintiff and the defendant.

• This (officer) should be a śūdra. To the same effect is Vyāsa:
  The king should appoint as sādhyapāla a strongly built śūdra, who
  helps (in arriving at) the truth (by summoning witnesses &c.), who holds the
  post hereditarily and who acts under the orders of the sabhyas.
  Yājñavalkya (2. 3) says:
  A king who cannot, owing to pressure of (other) work, look into the
  causes (of litigants) should appoint (to administer justice) a brāhmaṇa
  learned in all dharma (law) along with sabhyas.
  Bṛhaspati (p. 278 vv. 6 and 8) declares the duties of the king and the
  presiding (judge):
  The presiding (judge) is to declare (the decision), the king is to
  punish (to execute the punishment), the sabhyas to investigate the causes,
  the accountant is to count the money (or to cast figures) and the scribe is
  to write down the (legal) proceedings.
  The same author (Bṛhaspati p. 279 v. 16) says:
  The king should sit facing the east, the sabhyas facing the north, but
  the accountant should face the west and the scribe the south.
  Yājñavalkya (2. 30) speaks of determining agencies other than the royal
  court:
  In matters of judicial proceeding among men each preceding one (out of
  the following), viz. the (judges) appointed by the king, the pūgas, the
  śreṇis and the kulas, is superior (in authority).
  The words 'nṛpenādhikṛtāḥ' mean 'the prāḍvivāka and others.' 'Pūgāḥ¹'
  (means) the 'assembly of men living in the same village, earning their living

1 For detailed explanation of pūga, śreṇi and kula, vide notes to V. M. pp. 12-14. Pūga was
somewhat like a village panchāyat, śreṇi was a guild of persons belonging to the same caste
and pursuing the same calling, such as a guild of oilmen or weavers. 'Kula' means the kind-
red of the parties constituted into a court. Nārada (I. 7) also says that kula, śreṇi, gaṇa, the
judge (appointed by the king) and the king were the sources of justice, each of superior
authority to the preceding one and Bṛhaspati as quoted in the Vīramitrodaya (p. 40) says
that kula, śreṇi and gaṇa may investigate all causes other than those of sāhasa (heinous wrongs
in which an element of force is involved).

• P. 5 (text)

6 VYAVAHĀRAMAYŪKHA [ S I 1 9-10
[ M p 4 l 32-p 5 l 18
by various callings and belonging to different castes. And śreṇis are the
opposite of pūgas. Kulāni (means) the assembly of castemen, relatives
and blood relations. Bṛhaspati (p 281 v 25) also says
For those who move about in the forest a court should be held in the
forest, for soldiers in the army and for merchants in the caravans.

• Karaṇa (means) sabhā (court). Kātyāyana mentions the (proper) time
  for investigating judicial proceedings
  The king putting down his foes should decide the causes conformably to
  the rules laid down in the śāstras in the court and in the first half of the
  day. The three parts¹ of the day omitting the (first) eighth part of it are
  declared to be the best time for (investigating) judicial proceedings as laid
  down in the śāstra.
  The eighth part is half of the first watch (of the day), the three parts
  are those that are subsequent to it and precede mid-day. And Samvarta decl-
  ares the tithis (lunar days) that are to be omitted (for investigating judicial
  proceedings)
  The wise should not look into judicial proceedings on these tithis viz.
  the 14th day (of the two halves of the month) the new moon the full
  moon and the eighth.
  Bṛhaspati (p 280 v 23) says
  Having occupied that (court) in the first half of the day along with
  the old the councillors and dependants he (the king) should investigate
  (judicial proceedings) and should listen to (the expositions of) purāṇas
  dharmaśāstra and arthaśāstra.
  Tam (means) the sabhā (the court). Arthaśāstra² (means) the science
  of politics. Nārada (p 15 v 39) declares (a rule of preference) in case of
  conflict between dharmaśāstra and arthaśāstra
  Where there is a conflict between dharmaśāstra and arthaśāstra
  one should do what is laid down in the dharmaśāstra and discard the
  dictates of arthaśāstra.
  But in case of conflict between two texts of dharmaśāstra, Yājñavalkya
  (2. 21) says
  ―――――――――――――――――――――――――――――――――――――――――――――――――――――――――――――――――――
  1 'The three parts &c.'—the idea is that the day (of 12 hours) is to be divided into eight
  parts (of 1½ hours each) and the court was to be held after the first part (of 1½ hours)
  and before midday (i.e. roughly between 7.30 A.M. and noon).
  2 Arthaśāstra—Mandlik and Bor. translate this as 'moral laws' but this is wrong. The
  well-known work of Kauṭilya on politics and state administration is styled arthaśāstra.
  P. 6 (text)

S. I. 1. 12-18 ] CONFLICT OF SMRTIS
M p 51 18-p 61 3 ]
In case of conflict between two smrtis reasoning ( or decision ) based
upon the practices ( of the old ) is of greater force ( or authority¹ ).

• Bṛhaspati blames him who does not take reasoning into consideration
  ( but merely follows the letter of the texts ) :
  The decision ( of the case ) should not be given by merely relying upon
  s'āstra, for in the case of a decision void of reasoning loss of dharma
  results
  Bṛhaspati ( p. 287 vv 28-31 ) says that the ( king ) should take into
  consideration the usages of the country and the like :
  The dharmas ( modes of right conduct or usages ) of a country, caste
  or family that were introduced in by-gone times should be preserved intact
  ( as they are ), otherwise the subjects become agitated ( they resent inter-
  ference in their usages ); people become disaffected and the forces
  (strength or army ) and the treasury ( of the king ) become depleted
  The maternal uncle's daughter is accepted in marriage by brāhmanas
  of the south; in madhyades'a² ( central India ), ( brāhmanas ) become
  hired labourers and craftsmen and eat cow's flesh, eastern ( brāhmanas )
  eat fish and their women are addicted to illicit intercourse ; in the north
  women are addicted to drinking and can be touched by men even when in
  their monthly courses On account of the acts ( specified ) these ( in their
  respective countries ) should not be liable to undergo prāyas'citta
  (penance) or to incur judicial punishment
  The word 'pūrve' means 'living in the east'. In some ( works ) the read-
  ing is 'sarve' ( for 'pūrve' ). 'Sarve' ( means ) brāhmanas and ( men of )
  other ( castes ), 'damah' means 'dandah' (legal punishment), some ( writers )
  maintain that the mention in some smrtis of prāyas'citta and the like in the
  case of these acts applies to countries not mentioned in this passage ( of
  Bṛhaspati ), while others who explain ( 'prāyas'cittadama' ) as the punish-

1. The Mit explains that in case of conflict between two smṛtis texts ratiocination
   which assigns to each of them its proper place by looking upon one as containing the rule
   and the other as containing the exception ( and such other methods of interpretation ) is of
   superior force, being based upon the practice of the old ( who pursue the rule laid down in
   one text and avoid the other ) Nyāya means 'rule of interpretation' The word 'nyāya'
   may also mean 'the decision' In that case the meaning is that in case of conflict between
   two smṛti texts, the rule of decision should be to find out what the usages of the people are
   and to decide accordingly Viśvarūpa gives two other senses of this passage and reads
   'smṛter virodhe'. This text of Yāj contains a rule somewhat similar to the doctrine that
   equity rather than the bare letter of the law should be followed In Bhau v Sundrabar Bombay
   Printed Judgments 1874 p 250 at pp 251 and 252 the texts of Yāj II. 21 and Br are referred
   to and the text of Yāj is translated as 'usage is of force for their construction'. Vide also
   Chunilal v Surajram 33 Bom 438 at p 489 (= 11 Bom L R. 708) where it is said that
   Nīlakantha cites Yājñavalkya's text that where there is a conflict between two or more
   smṛtis that one should be accepted which is conformable to equity.
2. Madhyadeśa is the tract between the Himālaya and the Vindhya, to the east of the
   place where the Sarasvatī disappears and west of Prayāga ( Allahabad ). Vide Manu. I. 21.

• P. 7 (text)

8 VYAVAHĀRAMAYŪKHA [ S. I 1 18-10
[ M p 6 ll 8-26
ment which serves as prāyaścitta say that (the passage lays down) the
mere exemption (of those people) from legal punishment while in other coun-
tries both legal punishment and penance will have to be suffered ¹ Vyāsa
( says )
The decision (of a litigation) between merchants craftsmen and
such others and between those who subsist on agriculture and the stage can-
not be given by others (who know nothing of these avocations), but it
should be assigned to those only who are well versed in these (avocations) ²
Manu ( 8 390 ) says
The king who desires his own welfare should not (himself) declare a
special decision in the case of men of the three higher castes who have a
dispute among themselves in connection with the orders (āśramas) to
which they belong (i e as brahmacārins, householders &c )
Kātyāyana ( says )
At the (proper) time (the king) should question the petitioner who
bows to him and stands before him what is your business and what
is your grievance, do not be afraid and speak out man! By whom
where when and from what (motive were you troubled) ? Thus he should
question the (applicant) when he comes to the court Having considered
along with the sabhyas and the brāhmaṇas what he speaks when thus ques-
tioned (the king) if the cause be proper should then hand over to him (to
the applicant) a seal (i e order under seal) or should order the servant
(called sādhyapāla above) for summoning (the defendant) ³
Nārada ( p 17 v 47 ) says
The applicant who has a dispute may put under restraint or arrest (the
defendant) who does not stand up to meet (i e who absconds or avoids) the
claim that is to be investigated or who minds not the words of the claimant
till the approach of the summons (i e the sealed order or the sādhyapāla)
1 According to the plain words of the text the doing of the various acts in the respect-
ive countries does not render the people liable to incur punishment nor to undergo prāyaścitta;
some say that they escape only punishment at the king's hand (but are liable to undergo
prāyaścitta) in those countries, while in other countries people guilty of these acts would be
liable to undergo both prāyaścitta and legal punishment. People guilty of offences were sup-
posed to be purified by undergoing punishment at the hands of the king (is legal punish-
ment was a kind of prāyaścitta ) Vide Manu 8. 318.
2. Vide Raghunathji v. the Bank of Bombay I. L. R. 34 Bom. 2, 8 (=11 Bom. L.R. p. 255)
where this passage is quoted and it was held that where the manager of a family firm borrow-
ed for the family firm without legal necessity the debt would be binding even on minor
members. Mandlik translates 'raṅgopajīvinaḥ' as 'among dyers' but this is wrong. The usual
meaning of raṅga is 'theatre or stage'. Mandlik himself on p. 21 translates raṅgāvatārī as
'performer on the stage'. This text does not mean that the king is not to decide these matters
but that he should not decide them hastily without the aid of experts.
3. In Sanskrit the same word is used for plaintiff and complainant, as there was no
clear-cut distinction made in ancient India between civil and criminal courts and procedure.

$\left.\begin{matrix} S. I. 1 16-17
M'p 61 26-p 71 28 \end{matrix}\right]$ ĀSEDHA OR RESTRAINT 9
The same author (Nārada p 17 v 48) mentions four kinds of (āsedha)
restraints (by the applicant, of the defendant)
Confinement to a place, restriction as to time, preventing from going on
a journey and prohibition from doing certain specified acts (such as expos-
ing goods for sale), restraint is thus of four kinds One thus subjected to
restraint should not transgress it $^1$
The same author (Nārada p 18 v 51) lays down the punishment for
him thus restrained who transgresses the restraint
One who is arrested being fit to be arrested and who transgresses it
deserves punishment
*The same author (Nār p 235 v 13) declares that in some cases the person
who restrains (the defendant) himself incurs punishment
He, however, who inflicts restraint (upon the defendant) in such
improper ways as stopping the senses or (stopping) speech or breathing
deserves to be punished and not (he who breaks away) from such restraint.
Nārada (p 18 v 49) declares the absence of punishment in certain cases
even when (the defendant) breaks through the restraint.
One, who is placed under restraint while crossing a river or when in
an impassable forest, or in a difficult place or in an over-whelming calamity
(overtaken by vis major or king's enemy) and the like, shall not be
guilty of an offence if he breaks away from restraint by another (in such
cases)
Kātyāyana prescribes punishment for him who puts under restraint those
that do not deserve to be restrained
He that restrains another not liable to be restrained should be punished
by the king, this is the established rule
The same author enumerates those who ought not to be restrained
Those who have climbed up a tree or a mountain, those who are seated
on an elephant, horse, chariot or vessel and persons placed in a dangerous
situation; all these should not be subjected to arrest by those who seek to
establish their claims; as also persons afflicted with diseases or misfortunes
and one who is engaged in a sacrifice
Nārada lays down the following rules as to summoning (the defendant) $^2$
The king should not cause to be summoned the diseased, minors, the
old, persons in a difficult situation, persons engaged in religious duties, one
who would be seriously ruined (if then summoned), one who is under a
calamity (a bereavement &c.), one who is engaged in the king's business
or in celebrating a (religious) festival, persons intoxicated or possessed,
1 Compare section 95 of the C. P Code of 1908
2 These verses are ascribed to Kātyāyana by the Vīr (p 52) and to Hārīta by the
Smṛticandrikā and are not found in the printed Nārada, but compare Nārada I, 52--54,

• P 9 (text)
  V. M. 2

10 VYAVAHĀRAMAYŪKHA [ S I 1 17-20
[ M p 7 L. 29-p.8 l.23
mad men those involved in grief servants, nor a young woman who has no
relatives a woman of a respectable family a woman who is recently delivered
a maiden of the highest caste, (because) these (females) are declared to be
dependent on their kinsmen (and their kinsmen should be summoned and not
they) It is allowable to summon those women upon whom their families are
dependent those who are profligate and who are prostitutes, as also those
that have no family (i e who are of low birth) and those that are sinful
Having understood the matter complained of the king should summon in
weighty matters even ascetics who have repaired to a forest but without
offending them Taking into consideration the time and the place and the
importance or otherwise of the causes the king may very slowly cause to be
brought even the diseased and others (enumerated above)
In some (copies) the reading is yānaiḥ (in palanquins or other
conveyances) for the word śanaiḥ (slowly) A person who being summoned
does not attend should be punished And to the same effect is Bṛhaspati (p.
288 v 85 )*
Where a person being summoned and having relatives and family¹ does
not attend through arrogance the king should fix a punishment for him
according to the (importance of the) matter in controversy
Kātyāyana prescribes different fines according to the difference in the matters
of controversy (for not attending when summoned)
If the matter be insignificant the fine shall be fifty (paṇas²) if it be
of a middling character the minimum fine should be one hundred, in serious
matters the fine should always be not less than five hundred (paṇas)
Pitāmaha speaks of what is to be done after the arrival of the person
summoned
The person complained against (i e the defendant) together with the
plaintiff should be made to stand in front of the court
The instrumental (in vādinā) is here used in the sense of together with
(and not in the sence of agent) Kātyāyana says
There (in the court) the complainant (or plaintiff) should first speak
out (his case) and after him the defendant At the end of both the members
of the court (the assessors) should speak out (their views) and after them
the presiding judge (prāḍvivāka)
³Bṛhaspati (p. 290 v 1 and p. 288 v 34) says
When a plaintiff and his opponent (or several pairs of plaintiff and
their opponents) approach (the court) each saying I should be heard first
1 Relying on the support of his relatives or his noble birth he treats with scant
courtesy the summons and hence he is to be punished for contempt
2 Kātyāyana as quoted in the Sm. C. say that wherever a figure is mentioned as a
fine for a wrong and nothing more is specified the figure refers to panas. Vide notes to V.M p 12
P 10 (text) ³ P 11 (text)

S I. 1. 20-23 ] PRIORITY AMONG LITIGANTS 11
M. p 8 l 24-p 9 l. 12 ]
the plaints should be recorded in the order of the castes (of the applicants)
or after considering (the gravity of) the wrong (in each case) In the case
of persons who are not bold (or mature in intellect), who are idiots, insane,
infirm on account of old age, women, minors or diseased, a relative or some
other person appointed (to represent them in the litigation) may declare the
plaint or the reply ¹
Nārada (p 29 v 22) says :
Whether a person be appointed by the plaintiff or be instructed (to
appear in court) by the defendant, success or failure belongs to him for
whom he carries on the litigation
As to the text of Kātyāyana (this is Nārada p 29 v 23),
Where a person, not being a brother or father or son or a servant,
undertakes another's litigation and speaks out (generally falsely) in judicial
proceedings, he is liable to be punished,²
it refers to persons who are not appointed (as agents) The same author
declares that in certain cases an agent (to conduct a litigation) cannot be
recognised (by the court)
In (judicial proceedings for) the killing of a brāhmaṇa, drinking liquor,
theft, adultery with preceptor's (elder's) wife, manslaughter, theft, touching
(violating) another's wife, eating forbidden things, seduction and defilement
of a virgin, violence (of language and actions i e slander and assault), for-
gery, treason, no deputy (or substitute) shall be given and the party who
does the act shall himself carry on the cause
(In the above passage) the word 'steya' (theft) is repeated in order
to lay down an absolute prohibition of a deputy (in the case of such offences
as theft³ ) *'Prativādī' means 'pratinidhi' (a substitute or deputy)
When the defendant is brought (before the court) Yājñavalkya (2 6)
describes what is to be done by the plaintiff
What was alleged by the plaintiff before the defendant was called should
be written down in the presence of the defendant and should be marked
(furnished) with the year, the month, the fortnight, the day, the names (of
the parties), their caste and the like
1 This verse makes provision for the appointment, in the language of modern law, of
a next friend or a guardian ad litem for minors, idiots and insane persons and recognised
agents Compare C P. Code of 1908, Order 32 for the former and Order 3 r. 1--2 for recognised
agents
2 This verse lays down a rule that resembles the English law of champerty and
maintenance
3 The Vīr tells us that this is the explanation given by the Madanaratna, which
seems to have been followed by Nīlakaṇṭha The Vīr itself prefers to explain the first word
'steya' as standing for the theft of gold (which was one of the five mortal sins according
to Manu XI 54 ) and the second 'steya' for theft in general This explanation is better as
the first word 'steya' is placed in the midst of the other mortal sins,

• P 12 (text)

12 VYAVAHĀRAMAYŪKHA [ S L. 1. 23-24,
[ M. p. 9 ll. 12-25
In another smṛti (it is said) :—^1
That is termed bhāṣā (plaint or complaint) which is presented to the
king and which exhibits an artha (cause of action), which is possessed of
the good characteristics (of a plaint such as being concise to) which is full
(i. e. fully states the subject matter of litigation), which is free from
ambiguity, which distinctly states the point to be established, the words
of which are employed in their primary sense (and not figuratively),^2 which
conforms to the statement made (at first before the defendant came), which
deals with things well known (i. e. is intelligible to any ordinary person),
which contains no inconsistencies, which is definite (and not vague) and
capable of proof, concise and (yet) exhaustive, which is not impossible
with regard to place and time, which contains the year, the season, the
month, the fortnight, the day, the hour, the country, the district, the village,
the house, the name or description of the subject matter of dispute, the caste,
the personal appearance, age, the measure and quantity of the subject
matter, the names of himself (the plaintiff) and the defendant, which is
marked with the names of ancestors of himself and of the opponent and the
names of several kings (during whose reign the parties and their ancestors
lived), which states the reasons for forbearing (to sue for some time) and
the loss caused to himself, which narrates (the names of) the original
receiver (donee) and donor.
The use in the case of pledge and the like of the year and the like occurring
in this passage will be stated (later).^3 The use of the country and the like in
some cases is declared in another smṛti:—
In suits for immoveable property these ten should be entered (in the
plaint) viz. the country, the village, the site (i.e. with boundaries), the caste
and names (of the parties), the neighbour, the dimensions and the name
of the field, the names of the father and grandfather (of the parties) and
mention of former kings.
Kātyāyana (says):
The prāḍvivāka (judge) should write down on a board with chalk the
plaintiff's statement as made by him in a natural manner and then on a
leaf (or paper) after it is amended.

1. These verses are ascribed to the Saṅgrahakāra in the Smṛticandrikā, the Parāśara-
   mādhavīya and Vīr. With these requisites of a plaint may be compared Order VI rules 2,
   and Order VII rules 1-3, 6-7 of the C. P. Code.
2. This may also mean 'which contains no digressions'.
3. The statement of the year, month &c. is not useful in all judicial proceedings, but
   only in some, such as those about sales, gifts and mortgages, e.g., if the same property is twice
   mortgaged, the first prevails over the second and hence the years of the transactions are
   important. The author refers to the verse of Kātyāyana quoted by him in the section on
   ādhi--ādhim-ekam dvayor ya tu. The Sm. C. and the Vīr. ascribe these verses to Kātyāyana.
   P. 18 (text).