व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)
Vyavahara Mayukha of Nilakantha Bhatta
नीलकण्ठ भट्ट (सम्पादक: पी. वी. काणे) द्वारा
egardedorregarded, the 'r' is slightly broken. It says regarded(orregardod`).
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the owner.²
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Thus ends (the section on) breach of contract of service.
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Divider line: ───────
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Now begins ( the section on ) non-payment of wages.
Wait, spacing: ( the section on )
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Nārada ( p 139 v 1 ) says
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A series of rules for payment and non-payment of the wages of labour-
Line 21:
ers is declared ( hereafter ); that is known to be the title of law called
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' non-payment of wages '.
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Yājñavalkya ( II. 194 ) says ·
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He who without settling the wages to be paid causes work ( to be done )
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should be made by the king to pay a tenth part ( of the profits ) of trade,
Wait, "the": the or tlie? In ( of the profits ), the 'h'
210 VYAVAHĀRAMAYŪKHA [S. XI. 4 5 / M. p. 128 l. 3-p. 129 l. 7]
compelled to do it after giving him the wages If he does not perform it
after having taken wages, he would incur liability to pay back twice the
wages ¹
Manu (VIII 215) says
A hired workman, who without being ill, does not perform through
insolence work as agreed upon should be fined eight kṛṣṇalas and no
wages should be paid to him ²
The same author (Manu VIII. 217 and 216) says
He, who whether well or ill does not perform the work as agreed,
shall have no wages paid to him though the work left unperformed be
only a small part. But a labourer who was ill may when he becomes
well perform his work as at first agreed upon and would get his proper
wages even after the lapse of a long time
Viṣṇu (V 153-154) says A hired labourer leaving off work before
the stipulated period expires shall forfeit the whole price of his labour and
should pay to the king a hundred paṇas. The same author (Viṣṇu V
157-159) says If the master dismiss the servant before the expiry
of the stipulated period he shall pay to the servant his whole wages and
a hundred paṇas to the king, except in cases where the servant is to
blame. ³ Vṛddha-Manu says
A servant should be made to pay the value of what he lost through care-
lessness and twice the value of what he lost through hatred (of the master)
but he should not be made to pay anything for what was stolen by
thieves nor for what was burnt nor for what was carried away by water
- Drohaḥ means hatred, Ūḍham means carried away
Yājñavalkya (II. 197-198) says
One who causes an obstacle (by refusal to work) just at the (auspicious)
time of starting should be made to pay twice the wages, if (he causes
obstacle) after starting he should be made to pay a seventh part, but
the fourth part if he leaves off on the way
Vṛddha Manu says
If a merchant dismisses the servant on part of the journey after selling
the merchandise, he (the servant) too must be paid but he shall receive
half the wages
Kātyāyana says
If the goods be detained or seized on the way he (the servant) would
obtain wages in proportion to the distance traversed That master who
- Compare Yāj. II. 198.
- A kṛṣṇala (otherwise called raktikā) is a little less than two grains. Five
kṛṣṇalas made one māṣa and 16 māṣas made a suvarṇa, but two kṛṣṇalas made a māṣa of
silver. Vide Manu VIII. 131 135 and Yāj I 362 363. - The fault of the servant must be theft and the like and not eating large quantities
of food &c.
P 218 (text)
S. XI 5-XII 1 ] NON-PAYMENT OF WAGES 241
M. p. 129 ll 8-32 ]
deserts on the way his servant who is helpless, tired or afflicted with dis-
ease will incur the first amercement, if he does not wait for three days in
the village (after the servant gets ill).
'Āsiddhyeta' means 'is detained or attached by the king's order'. Bṛhas-
pati (p 346 vv. 17-18) says
When a servant being enjoined by the master (to do something) does
an improper act (such as theft) for the master's benefit the master shall
be held responsible for it. That master who does not pay the wages of
labour even after the work is finished shall be compelled by the king to
pay it and also a proportionate fine¹
Nārada (p 141 v 7) says
(A merchant) who after having hired vehicles and beasts of burden
does not carry his merchandise by means of them shall be made to pay
a fourth part of the hire, and the whole hire if he leaves them half way.
- 'Yānam' means 'chariot and the like', 'vāhanam' means 'direct
vehicles such as horses' Kātyāyana says
He who having hired elephants, horses, bullocks, asses, camels and the
like does not return them when his object is fulfilled shall be made to pay
(the hire) till he returns them.
Nārada (p 143 vv. 20-21) says
If a man builds a house on the land of another and lives in it paying
rent (for the land), he may take with him when he leaves it the thatch,
the timber, the bricks and the like (building materials). But if he
has resided on the ground of another without paying rent and without any
definite agreement, he shall, when he leaves the house, make over to the
owner of the ground, the thatch and the timber and the bricks laid (as
walls)
'Stomaḥ' means 'hire'
Here ends (the section on) non-payment of wages.
Now begins (the section on) transgression of conventions.
Nārada (p 153 v 1) says :
The established conventions (or rules) among heretics, naigamas
and the like are styled samaya (compact, usage) That is known to
be a title of law called 'non-violation of conventions' ²
- It is better to read 'vinayam' for 'vetanam'.
2 'Samayānapākarma' — Anapākarma is used in Manu VIII 4 with reference to
'gifts' and 'anapakriyā' which is similar to 'anapākarma' in derivation is used with
reference to gifts and wages in Manu VIII 214 Nārada has 'vetanasyānapākarma' and
'samayasyānapākarma' It is difficult to give an exact rendering of anapākarma'.
- P. 214 (text)
V. M. 31
242 VYAVAHĀRAMAYŪKHA [ S. XII. 1-3.
[ M p. 129 l. 33-p.130 l. 27
- Pākhaṇḍinaḥ means persons engaged in trade who are opposed to
the path laid down by the Vedas naigamāḥ are those (traders) who
are not opposed to the Veda, by the word ādi persons learned in the
three Vedas are included. Bṛhaspati (pp 346 347 vv 2-3) declares the
duty of the king in these matters.
(The king) should bring and establish there (in his kingdom) brāhma-
ņas proficient in the Vedas and lores, learned brāhmaṇas and those who
keep sacrificial fires and should assign to them means of livelihood He
should donate to them houses and lands from which no taxes are levied
having declared in a grant of his that they would be free from liability to
pay in future (the king s dues on land cultivated by them) ¹
'Anāchedyakarāḥ means on which taxes are not levied Muktabhāvyāḥ
means 'the future (share of the king in the) produce from the soil of which
is given up Yājñavalkya (II 186) thus speaks about the peculiar rules
of learned brāhmaṇas and the like
Whatever rules are established by the king or by local conventions
should be assiduously observed (by the learned brāhmaṇas and others)
so far as they are not in conflict with their duties (as laid down in their
sacred books) ²
Nārada (p. 158 v 2) says
Among heretics, among naigamas guilds, corporations groups and
assemblages, the king must maintain the conventions (settled) among
them in fortified places as well as in the open country also
Śreṇis are communities of persons of various castes carrying on
one kind of trade or business, pūgāḥ are communities of the same (i e.
of persons of different castes) carrying on different kinds of trades,
vrātas are assemblages of kinsmen, relatives and cognates they are also
Saṁvid means a settled convention or usage and vyatikrama means transgression
So saṁvidvyatikrama is another name of samayasyānapākarma Manu (VIII 5) and
Yāj. employ the title saṁvid-vyatikrama while Br employs the word samayātīkrama
Heretics are Bauddhas and Jainas who deny the authority of the Vedas. Naigama
ordinarily means a trader Kātyāyana as quoted in V R. (p. 668) defines 'naigama
as a group of citizens The Mit. on Yāj. (II. 192) explains naigama as Pāśupatas
and others who regard the Vedas as authoritative (here the word is derived from nigama
meaning Veda).
1 Āp. Dh. S II 10. 26. 10, Manu VII. 133 exempt a learned brāhmaṇa from taxation
and Manu VII. 135 calls upon a king to assign means of livelihood to śrotriyas.
2 Aparārka and Sm. C. give examples of conventional rules Vide notes to V M
p. 890. Some examples are old prapās and temples should be repaired, poor people should
be supported when there is trouble from thieves, one man from each house should come for-
ward for defence &c In the Pehava inscription from the temple of Garibnath (Epi. Ind.
Vol I. p 184) we find that pious horse-dealers at Pehova agreed to impose upon themselves
and their customers certain tithes, the proceeds of which were to be distributed among
certain temples and priests. As examples of rules by the king are mentioned horses should
not be sent to the enemy's country food should be given to all travellers
P 315 (text)
S, XII, 8-XIII. 1. 8
M. p.130 l.22-p.131 l. 9 ] TRANSGRESSIONS OF CONVENTIONS 243
termed ' kulas ' ; ' pākhaṇḍins ' and ' naigamas ' have* been already
explained.¹ ' Gaṇas ' are the assemblages of these beginning with heretics
and ending with ' vrātas '. Yājñavalkya ( II 187 ) prescribes a punishment
for breaches of the conventions ( settled ) among these
Him who embezzles the property of a gaṇa or who violates their
established usages, the king should banish from the country after confis-
cating all his property ²
Here ends ( the section on ) the violation of conventions.
――――――
Now begins ( the section on ) rescission of purchase.
Nārada ( p. 149 v 1 ) says :
When a purchaser, after having purchased an article for a ( certain )
price, does not approve of it ( 1. e repents of the purchase ), it is termed
rescission of purchase, which is a title of law.
The same author ( Nārada p. 150 vv. 5-6 ) fixes the time for examin-
ing an article ( 1 e for buying an article on approval )
One should examine milch cattle within three days ( from purchase ),
beasts of burden for five days and the examination of pearls, diamonds
and corals may extend up to seven days. ( The examination ) of male
bipeds ( 1. e. male slaves ) may extend to half a month and twice that
( 1. e. for a month ) in the case of a female ( slave ), of all kinds of seeds
for ten days and for one day in the case of iron and clothes.³
Kātyāyana says .
The rescission ( lit. repentance ) in the case of land extends to ten
days for the purchaser or for the seller.
Bṛhaspati ( p. 350 v. 6 ) says
If some defect in any way is found ( by examination ) in the article
before these ( periods elapse ), the article should be returned to the seller
and the buyer should obtain the price thereof.
¶ Kātyāyana says :
If an article were purchased without being examined and was after-
――――――
1 Vide p 5 n 1 above for śreṇi, pūga and kula. Kātyāyana ( vv. 678-680 ) defines
the terms mentioned in this verse of Nārada ' Pūga ' is variously explained Mayūkha
gives one explanation Kāt explains it as ' companies of traders ' Vīr explains it as ' horse
riders and elephant riders '. Kāt, explains ' vrāta ' as meaning ' troops of soldiers armed
with various weapons ' and ' gaṇa ' as an assembly of brāhmaṇas ' Vide notes to V. M. p.
386 for examples of conventions prevalent among heretics &c
2 This punishment was to be awarded for serious offences, but for light ones Manu
( VIII. 220 ) prescribed a fine of four suvarṇas or six niskas &c.
3. Compare Yāj. II 177 These rules can apply only if the thing was purchased without
examination.
- P. 216 ( text ). ¶ P. 217 ( text ).
244 VYAVAHĀRAMAYŪKHA [ B. XIII. 1 8-XIII. 2.8
[ M. p. 131 l. 2-p. 162 l. 6
wards shown to be defective the article should be returned to its owner
within the time (limited by the śāstras) but not otherwise.
With regard to an article bought after an examination by (the pur-
chaser) himself Nārada (pp 149 150 vv 2-3) says
Where a purchaser after purchasing an article for a price thinks that
he has made a bad purchase, it should be returned (by him) to the
seller the same day without looking into it (i e. without examining it ) ¹
If the purchaser were to return it on the second day he would forfeit
(lit. bring) a thirtieth part of the price, if on the third day, double
of that (i e. a fifteenth part), after that it (the article) belongs to the
purchaser alone (i. e. it cannot be returned)
Nārada (p 150 v 7) says
A worn garment which is dark and soiled when purchased with
(knowledge of) all faults cannot be returned to the seller
Here ends (the section on) rescission of purchase
Now begins (the section on) non-delivery of sold chattel
Nārada (p. 146 v 1) says
When an article has been sold for a (certain) price and is not
delivered to the purchaser that is termed non-delivery of a sold chattel
which is a title of law
- Yājñavalkya (II. 254) says
He who having received the price of an article does not at all deliver
it to the buyer should be made to deliver it to the buyer together with
interest and if (the purchaser) has come from a foreign country then
together with the profit that he would have made in the foreign country
Dik means another country , ‘ diglābha means the profit that
would be made by sale in another country , sodayam means ‘ together
with interest The same author (Yājñavalkya II 256) says
If an article suffer damage by an act of God or the king the loss
will fall on the seller alone if he did not deliver it on demand
The same author (Yāj. II. 255) says
If loss (of the thing sold) arises through the fault of the purchaser,
the loss falls on the purchaser alone.²
Nārada (p 148 v 9) says
When a purchaser, having purchased an article does not accept it when
1 The reading avikṣataṁ (in an undamaged condition) is much better
- Compare section 107 of the Indian Contract Act.
P 218 (text)
S. XIII. 2-3-XIV. 2 ] NON-DELIVERY OF SOLD CHATTEL 245
M. p. 132 l. 6-p. 133 l. 2 ]
it is delivered to him (by the vendor), the vendor incurs no balme ( i e
commits no wrong) by selling it to another
Yājñavalkya says
What was sold for an inadequate price by an intoxicated man or
by one insane or by one who is dependent or idiotic must be given up (by
the purchaser) and it would still belong to the vendor.¹
All these rules must be understood as referring to an undertaking given
by the seller to the effect 'the article is to be delivered to you alone and to
none else, when the price is paid', since* Nārada (p 148 v. 10) says
Thus has the rule (or law) been declared with regard to goods for
which the price has been paid. When the price has not been tendered,
there is no transgression by the vendor,² unless there be a special agree-
ment (to deliver in spite of no price being paid)
On the sale of an article with blemishes Yājñavalkya says ³
That clever man who, knowing his chattel to be full of defects, sells it
should be made to pay double its price (to the purchaser) and a fine
equal to that (i e double the price)
Here ends the (section on) non-delivery of a sold chattel.
Now begins (the section on) dispute between master and herdsman.
When cattle or the like are destroyed (or injured) through the fault
of the herdsman, Yājñavalkya (II. 165) says
When the loss occurs through the fault of the herdsman, the fine
ordained for him is twelve panas and a half and (he must give) to the
owner also the animal⁴ (or its price).
'Dravyam' means 'a cow and the like'. Manu (VIII 234) lays
down the signs of ascertaining the death of cattle and the like.
1 This verse very closely resembles Bṛ p. 350 v 5. Some construe 'for an in-
adequate price' as a separate cause for rescission
2 No fault attaches to the vendor if he retains the article or disposes of it to another
when no price is paid unless he specially agreed that he would not do so, though the price
be not paid at once.
3. This appears to be the same as Bṛ. p. 350 v. 4 The verse in the text is not found in
the printed Yāj and is ascribed to Bṛ. by Sm C. and Vīr Compare Yāj. II. 257 and Nārada
p 148 v. 7.
4. 'Sārdhatrayodaś'a' is rendered as 13½ by the Mit, Aparārka and Smṛtica-
ndrikā, while the Vīr and Par M take it to mean 12½. The Vīr relies upon a Vārtika to
Pāṇini II 1 34 and the usage of the Mahābhāṣya. Vide notes to V M p. 332. Nīlakaṇṭha
seems to hold that a similar animal should be restored to the owner.
- P. 219 (text)
246 VYAVAHĀRAMAYŪKHA [ S. XIV 2-5
[ M. p. 133 l. 2-p. 134 l. 5
When animals die let (the herdsman) present to the master in order
to show (him) the signs (for recognising his deceased cattle) the ears,
their hides, their tails, the abdomen (or bladder) the tendons, the
pigment (found in their heads &c )
Madana says that aṅkaḥ means the horns and the like. Yājña-
valkya (II 167) describes the portion of ground (to be set apart) as
pasturage for cows and the like
- A vacant space (for grazing cattle) of one hundred bows should be
left between one village and another two hundred bows in the case of
a large-sized village and four hundred bows in the case of a town ¹
'Parīṇāhaḥ means land set apart for pasture for kine and the like.
This pariṇāha is the same as parīhāra since Manu (VIII. 237) says
round about a village an enclosure should be kept of one hundred bows
a kharvaṭa is a village having several artificers and husbandmen, some
say it means 'a village abounding in thorny shrubs ² Yājñavalkya (II
159-161) describes the fine to be paid by the owner of beasts when they
eat the growing crop or the like belonging to another
(The owner of) a she-buffalo doing damage to crops should be fined
eight māṣas half of that (the owner of) a cow (should be fined) half
of that (i e. two māṣas) (the owner of) goats and sheep. For cattle
sitting down in the field after eating the crops the fine is double of that
already stated The same fine is to be levied in the case of enclosures
(in which grass is stored) asses and camels are equal to she-buffalo
(as regards fine) As much crop as may be destroyed (by straying
animals) shall be made good to the owner of the field the herdsman (if
at fault) shall be whipped but the owner of the cattle incurs the fine
already stated
‡ Vivītam means a place for storing grass, wood and the like
Uśanas states an exception to the above:
(Owners of) cows are not to be fined during festivals (if they stray)
and at the time for a śrāddha.
Vyāsa says
O best of men what was enjoyed by brāhmaṇas after committing a
trespass, by very indigent relations or by cows excels the Vājapeya ³ (in
merit)
Uśanas says
- The reading of the printed text is grāmakṣetrāntaram (which means between
a village and the fields). A bow was often taken as equal to four cubits. Vide p. 66 for
various lengths of a bow - This is the explanation given by the Mit. The Mayūkha follows the Madanaratna
- Vājapeya is one of the seven soma sacrifices. Vide Gautama VIII. 21.
† P 220 (text) ‡ P 221 (text)
S. XIV. 5-XV. 2 ] DISPUTE BETWEEN MASTER AND HERDSMAN 247
M. p. 181 ll. 6-23 ]
Neither the pitṛs nor the gods taste ( the offerings ) of that man who
demands back the corn destroyed by cows ¹
Thus ends the ( section on ) dispute between master and herdsman.
Now begins ( the section on ) boundary disputes.
Bṛhaspati ( p. 351 vv 5-6 ) states the means whereby boundaries may
be ascertained
Dry cowdung, bones, chaff, charcoal, gravel, pieces of stones hollowed
out, sand, bricks, cow's tails, cotton seeds, ashes—after having put these
things in jars one should deposit them underground at the ends of
boundaries.²
Yājñavalkya ( II. 152 ) states some special rules about witnesses in
this matter :
Or men from neighbouring villages, even in number, either four, eight
or ten, wearing red garments and garlands of red flowers and carrying on
their heads clods of earth, should trace ( or point out ) the boundary.³
Nārada ( p. 157 v. 9 ) says
One man⁴ single-handed should not settle the boundary, even though
he be confident ( about his knowledge of the boundary ). This decision
( about a boundary ) must be entrusted to many, since it is an affair of
importance
- Bṛhaspati ( p. 352 v 11 ) says
In the absence of witnesses and signs ( of boundaries ) even a single
upright man acceptable to both ( disputants ), wearing a garland of
red flowers and a red garment and carrying a clod of earth on his head,
adhering to truth and having kept a fast, may fix the boundary
- The Vīr. (p 451) is careful to add that this applies to cows only at the time of s'rāddha
2 The marks of boundaries are either patent ( prakās'a ) or concealed ( upāms'u )
Vide Manu VIII 249 Wells, tanks, large trees, gardens, temples, mounds, beds of rivers—
these are ( Br p 351 v. 3 ) visible signs and the verses in the text give the invisible ones.
Compare Manu VIII 250-251 for a similar enumeration. - The boundary was to be settled by the evidence of witnesses properly so called ( a
witness would be one who actually saw the boundary laid out ) Vide Manu VIII. 253.
This verse says that in the absence of witnesses, sāmantas should settle it. 'Sāmantāḥ
samagrāmāḥ' is explained by Mīt as 'neighbouring villagers even in number'. The
words 'four, eight, ten' indicate according to Aparārka that two or six will not do, the
Mit. does not support this view Vide Manu VIII. 258 about sāmantas being four and VIII.
256 about red garments and garlands.
4 Dr. Jolly translates 'pratyayavān-api' as 'even though he be a reliable person.'
This is not correct The Mit. says that this verse applies where the single man is not
accepted by both parties as an arbiter
- P. 222 (text).
248 VYAVAHĀRAMAYŪKHA [ § XV. 2-6
[ M. p. 184 l. 20-p. 185 l. 24
Kātyāyana says
In the case of settling the boundary by walking, in the ordeal by kośa
(sacred water of the bath of idols &c.) in swearing by the feet of (idols
elders or brāhmaṇas) (the visitation of) divine or royal displeasure
is to be expected within three fortnights, one fortnight and a week res-
pectively.¹
Manu (VIII. 257) says
The truthful witnesses who point out the true boundary in aforesaid
manner are absolved from sin but such as settle it falsely should each
be fined two hundred (paṇas)
Nārada (p. 156 v. 7) says
If the neighbours speak what is not true in settling a boundary they
should all be separately fined by the king the middle amercement.
Kātyāyana says
Of the several persons gathered together (for settling a boundary) if all
of them do not (properly help to) decide either through fear or covetous-
ness they should (each) be made to pay the highest amercement.
Yājñavalkya (II. 153) says
In the absence of persons knowing the boundary or marks (indicating
it) the king is to settle the boundary (as he thought fit).²
- Manu (VIII. 265) says
When the boundary cannot be ascertained the king knowing the law,
should himself assign the (disputed strip of) land to that one party to
whom it would be most serviceable. This is the settled rule.³
The same author says
One should not disturb a man in the manner and extent of the enjoy-
ment of a house, (of access through) a door or of a market and the like
which he had from the time of its foundation.⁴
Kātyāyana also says
One should not interfere with (another's) base of the wall, drain
balcony window watercourse and dwelling house he who obstructs
would be liable to fine.
Mekhalā means the built base of a wall (i. e. the plinth)
bhramaḥ means passage for the exit of water. Niṣkāsaḥ according
1 The idea is that the boundary was not to be regarded as final for three fortnights. If
within that time the person or persons settling it were visited with divine or royal dis-
pleasure, then it was to be held that they decided falsely.
2 Under the Bombay Land Revenue Code (Bombay Act V of 1879) section 121 the
Collector's decision as to the boundary between two survey numbers is final.
- Avisahyāyām is variously explained. Aparārka, Sm. C. and Vir. explain as
devoid of witnesses and marks. Kullūka and Vir. as impossible to ascertain.
4 This is not found in Manu but in Bṛhaspati p. 351 v. 24 where vāri (water)
is read for dvāra.
P. 223 (text)
S. XV 6-9 BOUNDARY DISPUTES 249
M. p. 135 l 24-p 136 l 18 ]
to Madana, means a place for sitting down constructed of wood projecting from
a mansion and the like, but not touching (resting on) the ground. In some
books the reading is 'dhūma-niskāsaḥ', the meaning of which is 'a
window or the like for letting out smoke'. By the word 'ādi' (in the
verse preceding Kātyāyana's) are intended the walls of others and the like.
The same author (Kātyāyana says) :
After the time of the first entry (or foundation) such things are not
to be added at any time; one should not open a window so as to have a
peep into the dwelling houses of others or construct a drain for rainwater
on to the house of another ¹
Bṛhaspati (p 354 v 26) says :
A privy, a fire-place, a pit, a receptacle for throwing in leavings of food
and dirty water—these should never be constructed very close to the wall of
another.
- Varcah-sthānam' means 'a privy' ; 'atyārāt' means 'very near'.'
Kātyāyana says :
Places for depositing ordure, urine or (soiled) water, the construction
of a fireplace or pit should be made leaving (at least a space of) two
hands from the wall of another
Bṛhaspati (p 354 v. 27) says :
A path by which men and beasts go to and fro unhindered is declared
to be 'saṁsaraṇa' and must not be obstructed by anyone.
Nārada (p 158 v 15) says :
One should not obstruct a cross-road, the sanctuary of a deity, a king's
highway by (heaping) ordure, by a raised platform, a pit, aqueduct or
the eaves of houses.
Kātyāyana says.
That is called a cross-road (or thoroughfare) by which all men pass at
any time without being prevented and that is called a rājamārga (a king's
highway) by which all men pass at stated times
Bṛhaspati (p. 354 v 28) says.
He who makes obstruction on a thoroughfare (by keeping carts &c), or
makes a pit, or plants trees or voids ordure wilfully shall pay one māsaka
as fine
Manu (IX. 282) says :
He who voids ordure on the king's highway when there is no calamity
(or urgent pressure) should pay (as fine) two kārṣāpaṇas and should
immediately remove the filth ²
1 'To have a peep into' &c.—This speaks of the right of privacy which is recognised
by custom even now in Gujerat. Vide Nathubhai v Chhaganlal 2 Bom L R. 454, Manch-
lal v. Mohanlal 44 Bom 496 (= 22 Bom L R. 226) These are not to be added so as to
interfere with another's rights
2 Great leniency was shown to old men, pregnant women and minors. Vide Manu
IX. 283
- P. 224 (text).
V. M. 32
250 VYAVAHĀRAMAYŪKHA [S. XV 9-18 / M. p. 186 L10-p. 187 L10]
Kātyāyana says :
He who defiles with filth a tank a garden or holy water should be fined
the first amercement after making him remove the filth
Yājñavalkya (II 155) says
For destroying boundary, for encroaching beyond the boundary and for
usurping a field the fines (respectively) are the lowest, the highest the
middling.
Manu (VIII 264) says
One who usurps by intimidation a house a tank, a garden or a
field should be fined 500 (panas) but the fine is two hundred if he did it
through ignorance.
Kātyāyana says
The fruits and flowers of trees growing on the boundary between two
fields should be declared as joint between the owners of the fields.
Kātyāyana says
But where the branches of trees growing in one man's field are spread
over another's field he should be considered as the owner in whose field
the (branches) stand spread out.¹
Yājñavalkya (II 157) says
When a man without informing the owner of a field makes a water
-course in that field the owner (of the field in which the setu is made)
is entitled to the profit arising therefrom or in his absence the king ²
The same author (Yāj. II 156) says
A dike that produces benefit should not be forbidden because it causes
some slight injury as also a well which occupies little space but has abun-
dant water (should not be prohibited) because it deprives another of some
land.
Na niṣedhyaḥ (should not be prohibited) has to be understood
(after kūpaḥ)
Nārada (p 158 v 17) also says :
(The erection of a) dike in the middle of another man's field is not
forbidden if it confers great benefit while the loss is trifling large in-
crease (of crops) is desirable even if there be (slight) loss (of land)
Nārada (p 159 v 20) says
If a man were to repair (start afresh) a dike erected in former times
- Kātyāyana draws a distinction between jātāḥ and saṁsthitāḥ. Therefore it is
proper to understand after saṁsthitāḥ in the fourth quarter the word śākhāḥ. Mandlik
(p. 136) translates in whose field the trees stand But this is not correct. The reference
is to the fruits and flowers growing on such branches. - Setu does not mean bridge here, but a dike or watercourse. A setu is of two
kinds, one kheya (which is dug into the ground) and the other is bandhya (which prevents
the access of water) Vide Nārada p. 158 v 18. The purport of the verse is that a setu
should not be made in another's land without his permission or without giving him some
consideration.
P 225 (text) 7 P 226 (text)
S. XV, 18-XVI, 1.2. ] BOUNDARY DISPUTES 251
M, p. 187 l.10-p. 188 l. 2 ]
but which had become dilapidated, without the permission of the owner,
he shall not have the (use and) profit thereof.
Vyāsa says :
He who having taken a field does not himself cultivate it nor causes it
to be cultivated by another should be made to pay to the owner of the land
its produce and a fine equal in value to the king ¹
‘S'adam’ means ‘as much crop as it was possible to raise from the
field.’
Here (ends the section) on boundary disputes.
Now (begins the section on) Abuse.
*Bṛhaspati (p 355 vv. 2-4.) says :
That is said to be abuse of the lowest degree when the country, village,
the family or the like of a man is abused or sinfulness is ascribed (to a man)
without specifying any definite act (or object).² Speaking of one’s
(the abuser's) connection with the sister or mother (of the abused), or
ascription of minor sins (to the abused), is termed abuse of the middling
sort by those who are learned in the S'āstras.³ Charging a man with
taking forbidden food or drink, or taxing him with (the commission of)
mortal sins, mercilessly exposing a man’s weakest point—this is termed
abuse of the highest degree ⁴
‘Dravyam vinā’ (in the first verse) means ‘without specifying any
definite object,’ that is, it is merely a verbal abuse, ‘abhighattanam’ means
‘exposing’ (or divulging) Visnu (Dh S V. 35) says ‘For abuse of one of the
same class (as the abuser) a man should be fined twelve panas.’ In another
smṛti it is said :
When two parties have been guilty of abuse (insult) and both have begun
(to quarrel or abuse) at the same time, both shall undergo the same punish-
ment, if no differentiation is apparent (in respect of their culpability).⁵
Nārada (p. 208 v. 9) says :
He who is the first to offer an insult is decidedly to blame; he who
returns the insult is also a wrong-doer; but the one who is the first (i e.
who began) shall undergo the heavier punishment ⁶
- Compare Yāj. II 158.
- Compare Nārada p. 207 v 1.
3 Vide Manu XI, 59-66 and Visnu chap. 37 for upapātakas - For mahāpātakas vide Manu XI. 54
- This is Nārada p 208 v. 8.
- ‘Āksārayet’ means ‘one who falsely charges with the commission of a sin,’
- P, 227 (text).
252 VYAVAHĀRAMAYŪKHA [S. XVI 1.8-6
[M. p. 188 ll. 2-82
Manu (VIII 267) says
One defaming (or abusing) a brāhmaṇa shall incur the fine of a
hundred paṇas if he be a kṣatriya, if a vaiśya a hundred and fifty or two
hundred, but if a śūdra he shall be liable to corporal punishment.¹
*Bṛhaspati (p 356 v 7) says
For a brāhmaṇa abusing a kṣatriya the fine is fifty, for abusing a
vaiśya half of fifty (i.e. twenty five), for abusing a śūdra twelve and
a half.²
The same author (Bṛhaspati p. 356 v 12) says with reference to a śūdra:
(A śūdra) giving instruction as to the peculiar duties (of the classes
&c.) loudly uttering the Veda or reviling brāhmaṇas is punished by
cutting out his tongue.³
Manu (VIII 275) says
A man accusing his mother, father, wife, (elder) brother, father-in-law
and preceptor (of sin) shall be made to pay a fine of one hundred paṇas,
as also he who does not make way for his preceptor.
Bhrātā means the elder one, since the word is in association with
the father and other (venerable persons). In the Mitākṣarā and other works
it is said that (this punishment is incurred) in the case of the mother and
the rest (even though) they be guilty (of the sin charged) and in the case
of the wife (only) if she be innocent. Yājñavalkya (II 208-209) says
For a verbal threat of injuring the arms, the neck, the eyes or thigh,
the fine shall be a hundred, and a half of it in the case of the foot, nose,
ear, hand or the like. When however a feeble man speaks thus, he should
be fined ten paṇas, so one who is unable (to carry out his words into
execution) should be made to furnish a surety for the safety of the other.
†The same author (Yāj. II 205, 211) says
The king shall compel a man to pay a fine of twenty five paṇas who
abuses another by saying "I shall have carnal intercourse with your
sister or mother". For abuse of brāhmaṇas learned in the three Vedas,
of the king and of gods the fine is the highest amercement.
Nārada (p. 210 v. 21) says
One who calls an outcast an outcast or a thief a thief is equally
criminal (with those whom he charges) on account of the texts to that
- 'Vadha' is frequently used in the sense of corporal punishment. Vide Manu VIII
129 where we have dhanadaṇḍa and vadhadanda. Mandlik translates vadha by death
here. But this is too drastic a sentence, since Manu VIII. 270 prescribes only cutting the
tongue. Vide also Bṛhaspati a little below. - Compare Gautama XII. 8-10. As each succeeding fine is half of each preceding it
is better to take 'ardhatrayodaśa' as 12½ and not 13½ (in spite of the Mit. on Yāj. II 201).
Vide text P. 219 'ardhatrayodaśapaṇaḥ' and note thereon above. - Compare Gautama XII 4; Āp. Dh. S. II 10, 27, 14.
- P. 223 (text). † P. 223 (text)
S. XVI. 1. 6-XVI. 2.3 ] ABUSE 253
M. p 138 l, 32-p. 139 1.21]
effect; but (if he reproaches them) falsely he is twice as guilty (as
they would be).¹
Yājñavalkya ( II 204 ) says :
He who by true, untrue or ironical statements ridicules persons want-
ing in a limb or organ of sense or diseased persons, should be fined twelve
panas and a half
Us'anas says •
For him who pleads 'such a thing was said by me from ignorance, care-
lessness, envy or friendship; I shall not say so again' (the king) should
prescribe half (the ordinary) fine
Here ends (the section on) abuse
Now begnis (the section on) assault.
Nārada (p. 207 v 4) says
Hurting the limbs of another with the hand, foot, weapon or other-
wise or defiling a man with ashes (or other impure substances) is termed
assault
*Bṛhaspati (p 357 v 4) says:
He who having been abused returns the abuse or having been beaten
returns the blow or strikes an offender down commits no wrong²
Kātyāyana says :
Bhṛgu has ordained that the highest fine shall be inflicted for cutting
off the ear, nose, foot, eye, the tongue, the penis or hand; and the
middling one for injuring (or wounding) any one of them.
Yājñavalkya ( II 213-214 ) says •
For throwing ashes, mud or dust the fine is declared to be ten panas;
and double that amount for assaulting a man with an impure thing or
with the heels or with spittle This is so as regards offenders of the
same class with (those whom they offend). (for offences) against the
wives of others (of whatever caste) or against one of a higher caste
(than the offender) the fine is double (of the above). The fine is half
1, 'Vacanāt' may also mean 'even if he only says what is true.' The mere truth of
an imputation was no defence in a charge for defamation Vide exception one to sec 499 of
the Indian Penal Code, which requires that the imputation be made for the public good.
Compare Manu VIII 274 Kātyāyana (verse 176) lays down that if a man were called
'patita' in order that others should avoid contact with him, there was no punishment.
2 Br (p 359 verse 13) has another verse, which is similar to Nārada's quoted
under 'abuse' This verse does not conflict with them It states the right of private
defence and also means to convey that the man who returns an abuse or a blow is not
equally guilty with him who starts the affair.
- P. 280 (text).
254 VYAVAHĀRAMAYŪKHA [ : S. XVI. 2. 3-4
[ M. p 189 l. 21 p. 140 l.31
] (of above) if the offence be against persons of lower class (than the
offender) (For acts committed) through ignorance intoxication or the
like there shall be no fine¹
† Pārṣṇiḥ means the hind part of the foot Kātyāyana says
The fine shall be raised to fourfold when (assault is committed) with
vomited matter urine or ordure and the like sixfold if (these are thrown)
on the middle of the body and eightfold if thrown on the head
Yājñavalkya (II 216) says
When the hand and foot are (only) raised up (to strike) the fine is
respectively ten and twenty paṇas. For threatening each other with a
weapon, the middle amercement is prescribed for all castes
*The same author (Yāj II 217 218) says
For violently pulling the foot hair garment or hand the fine is ten
paṇas the fine is one hundred for violently pulling a man after covering
him with a garment and tightly tying him with it and then trampling him
under the feet A man who causes pain with a stick or the like and also
causes blood (to come out) should be fined thirty-two paṇas, double that
sum when blood is seen (to come out)²
- The meaning of pīḍā etc is for covering with a garment, tightly
tying (or dragging) and trampling under feet (the fine) is one hundred
The same author (Yāj II 219 215) says
The middling fine (is prescribed) for breaking a hand foot or tooth,
for tearing (or piercing) the ear or nose, for opening up a sore (that was
healed up) for so severely beating a man as to leave him almost dead.
The limb with which any one not a brāhmaṇa causes pain or injury to a
brāhmaṇa should be cut off When (a weapon or stick) is raised for
striking (a brāhmaṇa) the first amercement (should be awarded) and
half of it if the weapon was only touched (and not raised)
Manu (VIII. 279-280) says
With whatever limb a man of the lowest caste (i.e a śūdra) strikes one
of a higher class that very limb of his should be cut off this is the ordi-
nance of Manu If (a śūdra) raises his hand or a stick (for striking
one of a higher class) he is liable to have his hand cut off
Kātyāyana says
Just as different fines have been prescribed for abuse according to the
direct or reverse order (of classes) so also for assault (different) fines
should be inflicted according to the order (of the classes)
1 The Mit. takes uttameṣu to mean more learned and better in character than
the offender
2 The reading soṇitena samam, though of almost all mss., is bad, as it conflicts
with the fourth quarter of the verse Mit. and Aparārka read soṇitena vinā (without
shedding blood) which makes good sense,
P 231 (text)
S. XVI 2,5-XVII 1 ] ASSAULT 255
M. p. 140 l.31-p.141 l.22 ]
- Visnu (V. 73) says 'when several simultaneously strike down one
man, the fine for every one of them shall be double of that declared' (where a
singlo man strikes another).¹ Kātyāyana says:
For injury to the organs of the body just as a fine is to be imposed
(by the king), so also something must be given for appeasing the man
(injured) and also for curing him (as may be fixed) by experts ²
'Tuṣṭikāram' means 'what would satisfy the man beaten'; 'samut-
thānam' means 'the price of drugs etc.'; 'abhijñaiḥ' means 'by experts',
the meaning being 'what may be fixed by experts should be paid.' Yājña-
valkya (II. 225-226) says as to striking beasts:
For beating, shedding blood and for cutting off the horns and the limbs
of minor beasts (like goats, sheep and deer) the fine shall be from
two paṇas (upwards),³ for cutting off their organs of generation and for
causing (their) death the middle amercement (shall be inflited) and
the price (of the beast be paid to the owner) The fine is double for
these (offences of beating, shedding blood and etc.) in the case of large
animals (like bullocks, horses and etc.).
In respect of damage to trees Manu (VIII. 285) says '
The settled rule is that a fine must be inflicted (for injuring trees)
according to the usefulness of the several kinds of trees.⁴
Thus ends ( the section on ) assault.
Now begins ( the section on ) theft.
Nārada (pp 204-5 vv. 14-16) speaks of three kinds of chattels as being
useful (in the treatment) of theft.
Earthenware, a seat, a couch, bone, wood, leather, grass and the
like, leguminous corn (like māsa, mudga), cooked food-these are termed
articles of small value Clothes made of materials other than silk, beasts
other than cows, metals other than gold, rice and barley (these are declared to
be of) middling value; ‡gold, precious stones, silk, women and men (slaves),
- Compare Yāj II 221 for almost the same words.
2 Compare Yāj. II 222 and Br (p 358 v 10) - This means according to Aparārka two panas for beating, four for drawing blood,
eight for cutting off horns, 16 for cutting off a limb, while the Mit says that it is res-
pectively 2, 4, 6, 8 - Compare Visnu Dh S V 55-59 Those who destroyed trees had to pay the price
also to the owner Vide Yāj. II 228 for higher fine for cutting trees growing near temples and
boundaries.
- P. 232 (text). ‡ P. 233 (text).
256 VYAVAHĀRAMAYŪKHA [ S. XVII. 1 8
[ M. p. 141 L28 p. 142 l.17
cows, elephants and horses, and what belongs to a god a brāhmaṇa or a
king—these are regarded as articles of high value ¹
Here the same author describes open thieves
Traders quacks, gamblers, (corruptible) assessors (and judges)
those who accept bribes cheats those who (profess to) foretell and
interpret portents and fortune, nautch girls (or prostitutes) those who sell
imitations (such as imitation pearls and jewels) (hired servants) refusing
to do their work, those who profess to arbitrate (and make money by favour
ing one side) false witnesses, so also jugglers—these are open thieves ²
Similarly in another smṛti (Nārada p 223 vv 2-3) it is said
Open thieves are those who employ false measures and balances (i e
weights) receivers of bribes, those who are full of tricks, impostors,
women of ill repute (prostitutes) those who manufacture imitations those
who make their livelihood by declaring how a person may bring about his
welfare (i e who sell amulets etc)—these and such like persons are
considered open thieves in this world ³
Bṛhaspati (pp. 360—vv 7 15) says :
A merchant who sells articles after concealing their blemishes or after
mixing (good and bad ones together) or sells (old articles as new) after
repairing them should be made to pay double (the price of) the goods (to
the purchaser) and an equal fine (to the king) ⁴
*That physician who, though unacquainted with drugs and spells and also
ignorant of the true nature of a disease yet takes money from the sick shall
be punished like a thief. Gamblers playing with false dice, nautch girls
those who appropriate to themselves the king s taxes, astrologers and cheats—
these rogues are declared to be liable to fine. Assessors pronouncing an un
just decision also those who live by taking bribes, those who deceive people
that put trust in them—all these should be banished (from the country)
Those who without knowing the lore of stars or portents, yet expound
omens to people should be sedulously punished. Those who, endowing them-
selves with staff and deer⁵ skin, show themselves off to people (as ascetics)
and harm mankind in this disguise should be corporally punished by the
- Yāj. II. 275 alludes to these three classes of movables, the subjects of theft.
- These verses are Bṛ p. 360, vv 3-4. Manu (IX 256-257,) divides thieves into two
classes, prakāśa (open) and aprakāśa (concealed) or pracchanna. Akriyākāriṇaḥ may
also mean those who set up evidence that is no evidence. - Dr Jolly translates 'pratirūpakāḥ as those who walk in disguise but that is
doubtful. He translates maṅgalādeśa-vṛttayaḥ as those who live by teaching the per-
formance of auspicious ceremonies. Compare Manu IX. 258-260 for open thieves.
4 An equal fine may mean equal to the price or it may mean equal to the double
that is to be paid to the purchaser - Vide Baudhāyana Dh. S. II 10 12 and Manu VI 52 for staff and deer-skin being
two of the peculiar marks of a sannyāsin.
P 231 (text).
$\left.\begin{aligned} & S. XVII. 3-6
& M. p. 142 l 17-p. 143 l 10 \end{aligned}\right]$ THEFT AND ROBBERY 257
king's officers. Those who, by repairing and polishing articles of small value,
(make them appear as of great value and deceive the ignorant should be
fined in proportion to the gain (made by them). Those who make false gold,
false jewels, false coral and the like should be made to return to the purchaser
the price and to the king a fine double (of the price of the article they
professed to sell). If arbitrators cheat (either party) through friendship
or covetousness or the like motive and if witnesses give false evidence,
they should be made to pay a fine double (of the claim).
*Vyāsa says
'Those, who stealthily move about at night, furnished with tools (for
robbery) and whose places of residence are not known, should be known as
secret thieves.'
The same author (Vyāsa) says
A pick-pocket, a house-breaker, a highway robber, a cut-purse, he who
steals women, men, cows, horses and other animals—these are declared
to be nine kinds of thieves$^1$
'Sandhi' means 'the joint of a wall and the like' Yājñavalkya (II. 274)
says :
The pickpocket and the cutpurse should be deprived of their two fingers
(viz. the thumb and the index finger), for the second offence they should
be deprived of the hand and the foot$^2$
'Saṃdaṃśaḥ' means 'the thumb and the forefinger.' Manu (IX. 276) says.
'The king should cut off the hands of those robbers who having made a
hole in a wall commit a theft at night and should impale them on a sharp
stake
Bṛhaspati (p 362 v. 17) says :
So highway robbers should be bound and should be hanged by the neck
from a tree The king should cut off the fingers of a cut-purse when he is
caught for the first time, his hands and feet (when caught) a second
time and he deserves death (when caught) a third time$^3$
Aṅguli' means 'the forefinger and the thumb.'
Nārada (p. 225 vv. 16-17) states a special rule when the thief runs
away taking the booty with him :
- 'He who steals animals'-this contains five kinds of thieves.
- 'Saṃdaṃśa' means 'tongs' The Mit explains that the picketpocket's hand
should be cut off and the tong-like two fingers of the cutpurse should be cut off. For repeat-
ing the offence, one hand and one foot was to be cut off, according to V. R As they found
the two fingers most useful in theft they were to be deprived of them. - This last verse is Manu IX 277 On account of Yāj. II 274 the fingers meant here
are the forefinger and the thumb though the plural 'aṅgulīḥ' is used in Manu. The
Mayūkha seems to have read 'aṅgulī granthibhedasya.'
* P. 285 (text)
V. M. 33
258 VYAVAHĀRAMAYŪKHA [ S. XVII. 6-8.
[ M p 148 l. 10-p. 144 l. 7
*In whosesoever land (range or jurisdiction) a theft takes place
should try to catch the thief or he should be made to pay (the price of)
the thing stolen, if the footmarks have not gone out from that land or
range). When the footmarks (of the thief) are not seen anywhere else
after leaving the place (where the theft was committed) the king should
make neighbours, the guardians of the roads (marches) and the governors
of the district pay (for the stolen goods).
Yājñavalkya ( II. 272 ) also says:
The village shall pay (the price of stolen goods) when the theft took
place within its own borders (provided footmarks are not found to go out
of the village) or (that village should pay) to which the footmarks (of
the thief) are traced if (theft committed) beyond one krośa from the
village, then the five (surrounding villages) or ten villages should pay.¹
On the point of kidnapping women Vyāsa says:
The kidnapper of a woman shall be burnt on an iron bedstead with
a fire of grass (or weeds). The kidnapper of a man should have his
hand and foot cut off and be exposed in a thoroughfare.²
Bṛhaspati ( p. 362 v 19 ) says:
A cow-stealer shall have his nose cut off and shall be plunged into
water after being bound.
Nārada ( p. 227 v 28 ) says ³
If a man kidnapped a married woman his whole wealth (was to be
confiscated by the king) but if he kidnapped a maiden he should be
killed. For a theft of horses elephants and metals, the king should take
(the whole wealth); this is the view of Bṛhaspati.
The word sarvasvam is to be repeated (in the second half verse).
Vyāsa says:
Of a thief of cattle half the foot should be cut off with a sharp weapon.
‡ Nārada ( p. 227 v 29 ) says:
On him who steals a large animal (elephant, horse &c.) the highest
fine shall be inflicted; the middling on him who steals an animal of middle
size and the first for theft of minor animals.
Manu ( VIII 320 ) says:
On him who steals more than ten kumbhas of corn corporal punishment
shall be inflicted. In other cases (i.e. theft of one to ten kumbhas
of corn) he should be fined eleven times as much (as the price of stolen
- V. R. explains village as headman of the village while Mit. explains it as
villagers. - Compare Bṛ. p. 362 v 18.
- Nārada has only the first half. Compare Manu VIII 323. The conflict about
punishments between various smṛtis is due to considerations of the castes of the thieves, their
being poor or well-off and the worth of the object stolen. So says V. R.
- P 236 (text) ‡ P 237 (text).