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

$\left.\begin{matrix} S. I. 1 16-17
M'p 61 26-p 71 28 \end{matrix}\right]$ 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).

[ V. M. text ] AMENDMENT OF PLAINT 13
[ p. 10 ll. 2-3 ]
Nārada (I. 25 v. 7) declares the time for amendment (of the plaint) :
'He (the plaintiff) may amend the plaint as long as the reply (of the
defendant) is not presented. Amendment (of the plaint) should cease
when it (the plaint) is hemmed in¹ by the reply. As² long as the defen-
dant does not enter his reply to the plaint so long the plaintiff may cause
to be entered (in the plaint) whatever matter may be desired to be ex-
pressed by him.'
These being the characteristics of a (proper) plaint, faulty² plaints that
are of an opposite nature to it (to a proper plaint) are (expressly) declared
in another smṛti* though they follow as a matter of course (impliedly).
'The king should reject a faulty plaint, viz., one which is unknown, that
discloses no injury (of which the court could take cognizance), that is mean-
ingless, that gives no cause of action (to the plaintiff), that is incapable of
proof, that is self-contradictory.
'"Aprasiddha" (exemplified by) "my skyflower has been stolen",
"nirābādha" (disclosing no injury) by "he works with the light of my lamp",
anartha (is exemplified) by "my kacatatapa was stolen"; "niṣprayojana"
(by) "my neighbour studies with fine intonation", "asādhya" (by) "I was
derided by this man with a knit eyebrow", "viruddha" (by) "I was abused
by a dumb man". "viruddha" also means "what is opposed to (the usages
of) a town or country", as is declared in another smṛti:
'That which is forbidden by the king, what is opposed to (the interest
of) the citizens or of the whole nation and also of the councillors; others
again which are opposed to a town, village, or large groups of people; all
these causes are declared to be inadmissible (i.e. such plaints as the king
would not entertain).'
Nor can it be said that if a plaint contains more matters of grievance than
one it would be a faulty plaint, as to hold so would be in conflict with the
dictum of Kātyāyana:
'A king from a desire to find out the truth should undoubtedly admit even
that plaint which contains many propositions (grievances) if it is definite so
far as judicial procedure is concerned (i.e. each proposition is supported
by distinct evidence).'
1 For amendment of plaint, compare Order 6 rule 17 of the C. P. Code.
2 This verse alone occurs in the printed Nārada (2-7).
3 'Faulty plaints' mean plaints that appear to be so but are really faulty and would
be rejected by the court.
4 The Vīr. ascribes this verse to Kātyāyana. For skyflower, vide above notes on
introductory v. 1, 'ka ca ṭa ta pa' are the first letters of the five classes of consonants and
the collocation of these makes no sense. Vide notes to V. M. p. 21 and pp. 25 and Kāt, v.
140 for detailed explanations of these terms,

• P, 11 (text)'.

14 VYAVAHĀRAMAYŪKHA [ S I 1 26-28
[ M p 101 So. p. 111 18
As to the text —
A plaint containing several padas ( vyavahāra-padas causes of action )
cannot hold good
it is to be explained as meaning that such a plaint (containing several causes
of action) cannot be simultaneously proceeded with (as to all causes) but only
step by step ( i e the causes will be investigated one after another¹ )
The plaint being thus reduced to writing Yājñavalkya ( 27 ) describes
what is to be done thereafter
The reply ( of the defendant ) who has heard the matter (of complaint)
should be written down in the presence of the plaintiff
²Nārada defines the reply ( of the defendant
Men versed in the ( law ) hold that to be a (proper) reply which meets
(all the points raised in) the plaint which is pithy ( or reasonable ) unambi-
guous not inconsistent (with itself) which is intelligible without explanation.
Kātyāyana mentions the four varieties of it ( i e of the reply )
A reply is of four kinds viz either by denial ( of the allegations in the
plaint ) by confession (or admission) by a special plea or by the plea of a
former judgment ( i e by the plea of res judicata )³
⁴The same author defines a reply of denial
If the defendant should deny the claim ( of the plaintiff ) that reply is
known in judicial procedure as one of denial.⁴
The same⁵ author declares that (the reply of denial) to be of four kinds
This is false I do not know I was not present then I was not
born at that time , thus the ( reply by ) denial is of four kinds.
The answer by confession is described in another smṛti
Statement ( by the defendant ) of the truth of the claim ( made by the
plaintiff ) is declared to be the answer by confession
Nārada defines the reply of special plea ( or admission and avoidance )
If the defendant admitting the allegations set out in the plaint puts
forward a plea it is known in the smṛtis as a reply of special plea
Kātyāyana describes the reply of former judgment

1 This is a dictum of Kātyāyana. For explanation of these two dicta of Kātyāyana
vide notes to V. M. pp. 25-26 and Kāt. vv. 136-137
2. This is not found in the printed Nārada.
3. Compare the very similar words of Nārada p. 2, v. 4
4. This is ascribed to Bṛhaspati by the Vy. Māt. and Par. M.
5. This is the same as Kāt. p. 6, v. 5.
P 15 (text)

S. I ; 2 ... ] RES JUDICATA 15
V. P. 11. 1–2. 1. ]
'If (a person), (although, later) defeated in a judicial proceeding, again
has a (plaint) written out, it should be addressed 'You were formerly de-
feated': this is called the plea of former judgment.
These being the characteristics of (a proper) reply, it follows as a matter of
course that the replies that are destitute of these (characteristics) are faulty
replies; and they are expressly stated in another smṛti : ²
A reply that is ambiguous, that is not to the point (in dispute), that
is very concise or very prolix,³ that meets only a part of (the allegations
in) the plaint, cannot be a (proper) reply.
A reply that sets up another title of law (i.e. that sets a cause of act-
ion different from the one stated in the plaint), that does not meet all the
particulars in the plaint, that is of mysterious (or veiled) import, that is in-
consistent, that is intelligible (only) after explanation, and that is opposed
to reason (or that is void of substance), does not serve the purpose (sought
by a reply).⁴
*Kātyāyana also (says):
The reply, which is one of confession (or admission) as to a portion of
the plaint (i.e. as to one count therein), which is a reply of a special
plea as to another portion (of the plaint) and which is a reply of denial as
to a different portion (of the plaint) is not a proper reply on account of
the blending (of several pleas in one).⁵
The same author states the reason why it (such a reply) is not a proper reply:
In the same litigation the burden of proof (kriyā) cannot rest on
both litigants, nor can both succeed in their object, nor can two methods of
proof be resorted to at one (and the same) time.⁶
The meaning of this passage is as follows:—
In a blending (joinder) of the replies of denial and special plea, it
follows that the burden of proof lies on both the litigating parties (plaintiff
and defendant), as Nārada declares.
In (the reply of) denial, the proof rests upon the plaintiff, in (the
reply of) special plea on the defendant.
1 This is ascribed to Nārada by Aparārka, to Bṛhaspati by Par. M. and to Kātyā-
yana and Bṛhaspati by Vīr.
2 The two verses are ascribed to Kātyāyana in Aparārka, Vy. Māt. and Sm. C.
3 These words may also mean 'that admits either much less or much more than
what is alleged in the plaint.'
4 For detailed explanation of these verses vide notes to V. M. pp. 28-29, and Kātyā-
yana vv. 173–175.
5 Mandlik omits the translation of 'Saṅkarāt'.
6 'Kriyā' means 'means of proof' and also 'burden of proof'. For illustrations
and detailed explanation of this and the preceding verse, vide notes to V. M. pp. 29–31 and
Kāt. vv. 189–190.

• P. 16 (text)

16 VYAVAHĀRAMAYŪKHA [ S. T. I 80-82
[ M p 19 ll 2-8]
rt. To have burden of proof on both the parties (to a litigation) in the same
suit is contradictory (or inconsistent). So also in a combination of (the
replies of) special plea and former judgment the defendant alone has to
discharge a double burden of proof since Vyāsa says —
'In putting forward a reply of former judgment and of special plea it is
the defendant who should exhibit the proof
And here on account of a text of Vyāsa himself in a plea of former judgment
by the decree and by the (testimony of) prāḍvivāka and the like (defen-
dant has to establish his case) in the plea of former judgment the case
is to be established by (production of) the decree or by (the testimony of)
those who took part in the former judgment while in a reply of special plea,
(the case is to be established) by means of witnesses, documents and the
like. And so in this (combination of two replies) there is conflict. The
same is to be understood in the combination of three or four replies. These
(combinations of several replies in the same suit) constitute improper replies
only when they are (pursued) simultaneously but when (pursued) one
after another they are proper replies. The order (in which they are to be
pursued) rests on the will of the plaintiff the defendant and the sabhyas
And Hārīta also says ¹
If in the same litigation there be (a combination of) both viz a
reply of denial and of special plea or there be (a reply of) admission along
with any one of the other (three kinds of reply) then in such a case, what
reply should be taken up (first for investigation)? (The answer is) in such
a case that reply which is concerned with more valuable or important
matters (alleged in the plaint) or whereby the result due to the adducing
of proof will follow (quickly or easily) should be regarded as the reply
and it becomes free from the fault of confusion (of replies) but otherwise ²
(the reply would be liable to the fault of confusion)
'The words it becomes liable to the fault of confusion are to be understood
(in the above passage). The meaning of this (passage) is when there is
a claim for gold and clothes in the case (of a reply) that gold was not received
and that clothes were received but returned the judicial proceeding should
first be carried on in regard to gold and then with regard to clothes ³. The
same (rule) should be applied in regard to the combination of the reply of
denial and of former judgment and of the reply of special plea and former
judgment. In the same claim (for gold and clothes) if it be replied that
1 The following verses lay down the order in which in certain cases, independently
of the will of the parties several issues raised by the defendant are to be taken up for in-
vestigation. These verses are attributed to Vyāsa by Aparārka and V. Mit. both of which
add a half-verse. In the case of the combination of the replies of denial and special plea, the
the latter should be taken up first.
2 This means if the rule contained in the preceding were not followed.
3 As gold is the more valuable out of the two.
P. 17 (text)

S. I. 1. 32-34 ]
M.p 121 31-p 131 21 ] BURDEN OF PROOF 17
gold was taken but that clothes were not taken or were returned ( after being
received ) or that ( the plaintiff ) was defeated ( in a lawcourt ) in regard to
clothes, then the judicial proceeding should be carried on with reference to
clothes only and not with reference to gold, since though ( gold ) is more
valuable, there is no necessity of proof in regard to it. Where the claim being
' this is my cow, she was missing on a certain day, she is seen to-day in
this person's ( the defendant's ) house ' and the reply being ' this is false, the
cow was in my house even before the time indicated in the plaint ', the
reply though a combination of the replies of denial and special plea is not
a faulty reply, since it meets the whole plaint ( all the points in the plaint ).
This is a reply of denial together with a special plea. Here the burden of
proof rests on the defendant alone, not on the plaintiff also,¹ since Hārīta says
' in a reply of denial and special plea, the reply of special plea must be taken
up ( for investigation ) '. In the same way when there is a combination of
the replies of denial and former judgment and of the replies of special plea and
former judgment, they are not faulty replies, if such combinations meet the
whole plaint. Here in both cases the burden of proof lies on the defendant
alone. Hence in no judicial proceeding whatever does the burden of proof
lie on both the parties ( at the same time ). This will suffice (to explain the
above passage of Kātyāyana).²
After the reply has been recorded, the proofs are to be exhibited and
Yājñavalkya (II. 7-8) declares the order ( in adducing proof ) :
Then the plaintiff should at once cause to be written the evidence
( which he proposes to adduce ) for establishing the matter alleged (in the
plaint ). If that (evidence) holds good he obtains success, if it be otherwise
( i. e. if it does not hold good ), the reverse is the case ( i. e. he is defeated ).
*This ( verse ) applies as regards a reply of denial, but in other kinds of
replies it is the defendant only who has to adduce evidence, as Hārīta says :
In a reply of former judgment and of special plea the defendant should
exhibit the proof, but in a reply of denial, the plaintiff ( should exhibit it);
in the reply of admission, there is no need for it ( for proof ).
Yājñavalkya ( II. 8 ) thus declares that a judicial proceeding has four parts
(stages):
This judicial procedure is shown (by me) to have four parts ( stages ) in
litigations.
And the four parts ( of Vyavahāra ) are clearly set forth in another smṛti:
( Vyavahāra ) is said to be fourfold as in it enter four parts on account
of there being the plaint, the reply, the proof and the decision that come in
order one after another.
1 The burden of proof in a pure reply of denial is on the plaintiff and in a pure reply
of special plea on the defendant. As this is a reply of denial and special plea it may be argued
that the onus of proof is on both. To this a reply is given here.
2 For detailed explanation vide notes to V. M. pp. 32–35,
*P. 18 (text).
V. M. 3

18 VYAVAHĀRAMAYŪKHA [ B. I. l. 84-86
[ M p. 181 25-p. 14 l. 3
But this (dictum) applies to all replies other than a reply of admission,
since a reply of admission has only two parts, as Bṛhaspati says ¹
In a reply of denial Vyavahāra has four parts and also in (a reply
of) special plea, but in replies of admission it has two parts (only)
Yājñavalkya (II 9-10) says
(A defendant) should not countercharge (or counter-claim against)
the plaintiff (or complainant) until he has met the claim (made against
him) One who is already labouring under a claim (should not be
allowed to be charged) by another (until he is free from that litigation)
(The plaintiff) should not change what he has already stated ² In quarrels
(violence of speech and act i. e. defamation and assault) and in offences in
which force enters a counter charge is allowable (even before clearing one-
self from the original charge or claim)
*Nārada (p 29 v 24) says
That man who abandoning his former ground of claim has recourse to
another shall be regarded as a losing party since he wanders from one
ground of controversy to another
The person who shifts his pleading is liable to fine but he does not lose the
suit he has brought. This is the meaning. This (rule) should be under-
stood as applying to civil proceedings ³ as the same author (Nārada p 29 v
25) says
In all civil disputes (a litigant) does not lose (altogether) for verbal
deceit (i e for changing his statements) In disputes about (seducing)
another's wife about land and non-payment of a debt the party though
liable to be punished (for fraudulent speech) does not lose his property ⁴
1 When there is an admission of plaintiff's claim there is no necessity to adduce
proof and so there is no kriyā and the moment there is an admission there is nothing to be
established by examination of evidence, but judgment follows at once. Hence there is no
sādhyasiddhi.
2 These words may apply not only to the change of pleading by plaintiff but
also to the change of pleading by defendant The Mit. takes it to apply to the plaintiff's
change of pleading, while Par M. applies it to both plaintiff and defendant. Vide notes to
V M p. 38. The words 'what was alleged should be written down in the presence of the
defendant refer to the things about which allegations were made (i. e if the plaintiff first
complained about theft of rupees, he cannot write down theft of clothes) while here he is
forbidden to change the title i. e if he alleged that one hundred rupees were borrowed at
interest he cannot allege that they were stolen from him by the defendant.
3 The eighteen titles of law are classified as either dhanamūla or hiṁsāmūla
(arising out of property or injury i e civil or criminal) Vide notes to V M p
4 The printed Nārada read 'Pas'ustrīgo'—meaning in disputes about cattle women
This verse means that in civil disputes a man does not lose his case altogether by a change
of pleading, though he may be fined but in criminal matters his complaint may be dis-
missed altogether if he shifts his position
P 12 (text)

S. I. 1 36-38 ] BURDEN OF PROOF 19
M p 14 ll 2-30 ]
The latter half (of the verse) serves as an illustration of the first half.
Yājñavalkya ( II 17 ) says:
When there are witnesses in support of both sides (i. e. both the plain-
tiff and the defendant) the witnesses for the plaintiff (are the means of
proof); when the plaintiff's allegation is brought down (from its position
of having to be proved), then (the witnesses) of the defendant (are to be
heard first)¹
'Pūrvavādinaḥ' means 'of the plaintiff'; 'pūrvapakṣa' means 'the plaint', 'adharī-
bhūte' means 'not requiring to be established because the defendant admits
(the allegations of fact in the plaint) by putting forward a reply of a special
plea'. The mention of witnesses is intended to include (by implication)
other means of proof also. The same author ( Yāj. II 10 ) says:
A surety should be taken from both (plaintiff and defendant) who
would be able to satisfy the final decision²
The word 'kāryanirṇaya' means 'the result of (or carrying out) the judgment'.
Kātyāyana enumerates those who cannot be accepted as sureties:
Neither the master, nor an enemy (of the litigant), nor one authorised
(or employed) by the master, nor one who is under restraint (or in jail),
nor one who is sentenced to pay a fine, never one who is in danger (of life
i. e. seriously ill), nor a coparcener (or heir), nor one who is penniless, nor
one who is banished to another country, nor one appointed to state service, nor
those who have entered the fourth order (i. e. ascetics), nor one unable to
pay (the claim of) the (judgment) creditor and an equal amount of fine
to the king, nor one entirely unknown, should be accepted for the purpose
of a surety.
'Niruddhaḥ' means 'one who is bound by chains and the like'; 'saṁśayas-
thaḥ' means 'one in a difficulty', 'rikthī' means 'one who is entitled to in-
herit the property such as a son, grandson and the like', 'riktaḥ' means 'poor',
'anyatra vāsitaḥ' means 'banished from the country'. Yājñavalkya ( II 52 )
says:

1. This verse is interpreted in two ways. The Mit. explains — When there are wit-
   nesses on both sides, those witnesses, who support the party that says that he was the first
   to enjoy the subject-matter of dispute are to be first examined. When the plaintiff's
   allegations have become weak or of little importance (owing to defendant's having admitted
   the prior state of things but having put forward a subsequent ground in avoidance of the
   prior state of things), the witnesses of the defendant should be examined first. The
   interpretation of Aparārka, the Vyavahāramātṛkā and Nīlakaṇṭha is — in a reply of denial
   it is for the plaintiff (the man who comes to the court first) to cite witnesses (or other evidence)
   for proving his case, but in the case of reply of special plea or former judgment, it is for the
   defendant to adduce his evidence first. The difference turns on the meaning attached to the
   word 'pūrvavādinaḥ'. Vide notes to V. M. pp. 40-41 for detailed explanation.
2. i. e. who would be able to pay up the decretal amount and the fine to be paid
   to the king.

• P. 20 (text),

20 VYAVAHĀRAMAYŪKHA [ B I 39-I 3.1
[ M p 14 l. 30-p. 15 l. 19
The relation of suretyship of creditor and debtor and of being a wit-
ness is not allowed by the smṛtis among brothers between husband and
wife ¹and between father and son so long as they are undivided
Kātyāyana declares (the consequences) if there be no surety
If there is no surety for a party who is able to meet the judgment (i e
pay the decretal amount and fine) then he (that party) should be kept
under guard and at the end of the day he should pay the wages of the
servant (who guarded him)
The same author says
A person of the regenerate classes unable to furnish a surety should be
guarded by those (servants of the king) who are outside (the court),
but (the king) should put in chains śūdras and the like who cannot
furnish a surety
Nārada (p 29 v 24) describes the characteristics of a losing party²
That man who abandoning his former statement (or ground of claim),
has recourse to another should be regarded as a losing party on account of
his wandering from one plea (to another)
*Yājñavalkya (2 13 15) describes a person who (whose testimony) is vitiat-
ed (and is therefore unacceptable in court)
He, who moves from one position to another (i e who is restless when
giving evidence) who licks his lips, whose forehead perspires whose face
changes colour who utters his words with stammer and with a dry tongue
who speaks much and incoherently who does not heed the speech or eye (i e
who does not reply straight to the judge's question nor fix his eye on the
judge) who contorts his lips who exhibits change from his ordinary (natural)
state in mind, speech and bodily actions, he is declared to be a vitiated
person as regards a complaint or being a witness
'Sṛkkiṇī' means the corners of the lips
Now (begins) the exposition of the means of proof
Yājñavalkya (II 22) says
Documents possession and witnesses are declared to be means of proof
In the absence of (even) one of these one of the super-natural (modes of
proof) is prescribed
Kātyāyana also (says)
If one (litigant) puts forward human means of proof and the other
(his opponent) relies on divine (means of proof) the king should in such
1 Vide notes to V M. p 42 as to separation between husband and wife Āpastamba
(Dh. S II. 6. 14 16) declares that there can be no division between husband and wife, but
the Mit. explains that the words apply to religious rites and not to wealth.
2 Vide p. 18 above for the same verse
P 21 (text)

$\left.{l}S I 2 1-4
M p. 15 l 20 p 161 11\right]$ MEANS OF PROOF 21
a case accept (rely upon) the human evidence and not upon the divine
(test) If human proof is offered by litigating persons, though it meets
only a (substantial) portion (of the whole claim in the plaint), it should
be accepted (relied upon) and not supernatural proof, though the latter may
be complete (i e may completly cover the whole claim in the plaint) In
disputes, when witnesses are available, supernatural proof is not allowed and
when there is a document,$^1$ no ordeal nor witnesses (should be relied upon) As
to the peculiar conventions of pūgas (communities), śreṇis (guilds of traders)
or gaṇas (tribes), writing is the (proper) means of proof and not ordeals
nor witnesses $^2$Where a thing is promised to be given but not delivered,
where a thing is (given and then) taken back, in the matter of deter-
mining the owner (of a thing), in the matter of taking back a thing after
it is sold, when one after purchasing a thing does not desire to pay the
price, in gambling and betting (on animals) when a dispute arises, (in
one of these cases) witnesses are declared to be the means of proof
and not ordeals nor documents In (disputes about) the making and
use of doors and ways and about water-courses and the like, possession
alone is weighty, neither writing nor witnesses
Bṛhaspati (p 315 vv 1-2) declares the superiority of supernatural proof in
certain cases
One who fabricates (or counterfeits) jewels, pearls and coins, who mis-
appropriates a deposit entrusted to him, one who injures another, one who
has intercourse with another's wife, these should always be tried with
oaths $^3$ In charges of deadly sins, if a party resorts to ordeals when wit-
nesses are available, (the king) should not examine witnesses
Vyāsa (says) *
(If a person says) 'I did not pass this document, it was falsely made
(forged) by him (by the opponent),' disregarding that document, the
decision as to that matter should be by means of ordeal, (where a wrong
takes place) in a forest or in a lonely place, at night, inside the house, in
cases of sāhasa and when a deposit is denied a divine mode of proof is
allowable $^4$
Bṛhaspati (p 317 v 17) says

1. Compare sec 91 of the Evidence Act
2. The first two here fall under Dattāpradānikavyavahārapada, the next may also
   mean 'when there has to be a decision between the master and the herdsman', the next
   comes under krayavikrayānus'aya The verse 'dattādatte &c' as quoted in the nibandhas
   presents a bewildering variety of readings The verse about the making and use of doors is
   referred to in Lallubhai v Bai Amrit I L R 2 Bom 299 at p 315
   3 Both oaths and ordeals are supernatural (daiva) means of proof, the former being
   employed in less serious wrongs Vide notes to V M p 45 for explanation.
3. This last verse is Nārada (ṛnādana 241),

• P 22 (text) § P 23 (text)

22 VYAVAHĀRAMAYŪKHA [ S I. 2, 4 II. 1, 1.
[ M. p. 16. l. 11 p. 1. 1.
Where a doubt arises as to a document or the statements of witnesses
and where inference is uncertain ordeal is the means of clearing up (the
doubt)
The same author lays down an option between witnesses and ordeals in certain
cases
When the dispute relates to sāhasa (robbery and the like) in cases of
violence of injury and speech (assault and defamation) and in all matters
springing from the use of force either witnesses or ordeals (are admissible
as proof) In debts either a document witnesses even some reasoning or
supernatural modes of proof are allowed from a desire for the good of the
people ¹
Yuktileśa means a portion of reasoning vācika pāruṣye means in de-
famation consisting of abuse or reviling in the form you are the slayer of a
brāhmaṇa As for the text of Kātyāyana in violence of words and in (dis-
putes for) land ordeal should not be resorted to, it refers to libels of a petty
character The mention of land includes (by implication) immoveable pro-
perty of every kind as Pitāmaha says in disputes about immoveable property
ordeals should be excluded This prohibition of ordeals holds good when
witnesses are available, and the same author (Pitāmaha) says to the same
effect one should support these disputes (about immoveables) by witnesses
documents and possession. The same author (says)
*In cases where there exists no writing nor possession nor witnesses
and there is no scope for ordeal, the king is the authority (he should
decide as he thinks fit) In the case of disputes of an uncertain character
which it is not possible to determine (with the usual means of proof) the
king is the authority since he is the lord of everything
Now (begins the discussion of) writings
On this Bṛhaspati (p 304 v 3) says
Writing is declared to be of three sorts, viz writing of the king that
written at a particular place² and that written in ones own hand Their
subdivisions again are numerous.
As to the text of Vasiṣṭha writings are known to be of two kinds viz
popular and royal wherein a two-fold division is declared that is due to
non-recognition of a difference between writings written at a particular place
and those written in ones own hand The words laukika and jānapada are
synonyms, as the author of the Saṅgraha says writings are declared to be
1 These two verses are ascribed to Kātyāyana by the Par M
2. Sthānakṛta (written in a particular place) seems to mean written in a well
known public place by professional scribes appointed by the king or his officers and attested
by witnesses. This was probably a substitute for the modern requirement of registration.
P 31 (text)

$\left.{l} S. II. i. 1-8
M p 17 ll 17-38 \right]$ DOCUMENTS 23
of two kinds, viz royal and jānapada (popular, of the common people')
Bṛhaspati (pp 304-5 vv 4-11) says
Popular writings are sevenfold, viz partition (deed), gift-deed, purchase,
mortgage deed, (deed of) conventions, deed of service (or bondage),
a deed of debt and the like Royal writings are of three kinds Where
brothers, divided among themselves according to their wishes, make a
document of separation, that is called a partition deed 'That writing
which, on making a gift of land, a person executes and which is (intended)
to last as long as the sun and the moon endure and that is not to be cut
down (as to the extent of the gift) nor to be resumed, $^1$is known to be a
deed of gift When a person, having bought a house, a field and the like,
causes a writing to be made containing words that state the exact price (paid
or agreed), that is called a deed of purchase That is called a deed of mor-
tgage (or pledge) when a person gives movable or immovable property as a
pledge and makes a writing which requires (the pledge) to be either preserv-
ed (intact without enjoyment) or to be enjoyed $^2$ When (the people of) a
village or a country execute a document in furtherance of dharma (i e
laying down some rule or convention of conduct), on which there is common
agreement, which is not opposed to the (interest or orders of the) king,
that is said to be a deed of conventions That document, which a
person, destitute of food and clothes in a forest, makes stating 'I shall do
your work (or the tasks you will appoint),' is called a bond of service (or
serfdom) That document of future repayment (uddhāra) which a man,
having borrowed money at interest, executes himself or causes to be
written (by another) is termed by the wise a bond of debt
On account of the word ādi (in the first verse above) documents of puri-
fication and the like are also included (in the enumeration of kinds of writings)
Kātyāyana describes a deed of purification and the like
When a person has performed the (prescribed) penance and become free
from the accusation (of having committed a forbidden act) the deed attest-
ed by witnesses given to him is known as a deed of purification That
writing is known as a deed of peace which recites what happened (by way
of compromise or settlement) when an accusation is brought (against a
a person) before all the leading people $^3$ When a boundary dispute is
decided, the writing (made) is ordained to be a

24 VYAVAHĀRAMAYŪKHA { S. II. i 3-5
{ M p. 18 ll 1 25

• Prajāpati describes a submortgage
  If the creditor hypothecates to another the thing already pledged with
  him for the same amount (for which it was pledged with him) he should
  pass a (fresh) deed of mortgage (or pledge) and should hand over the
  prior (deed of mortgage or pledge) to him (to his own creditor)
  Yājñavalkya (II 94) also (says)
  When (a debtor) has paid off the debt he should have the deed (of
  debt) torn off or he should cause a new writing to be passed (by the
  creditor if the original be lost or inaccessible at the time) for the purpose
  of (being able to establish) his freedom from the debt
  Nārada (p 75 v 135) mentions the difference between writings in one's own
  hand and in another's hand referred to already
  Writings are of two kinds, viz those made in one's own hand and those
  made in another's hand and not having attestation and having attestation
  (respectively) Their validity depends upon the usages of the country
  (where they are made) ¹
  Yājñavalkya (II 89) says
  A writing in one's own hand though without witnesses is declared by
  the smṛtis to be (legal) evidence provided it is not due to force or fraud
  Balam means force, upādhiḥ means greed and the like ²
  The same author (Yāj II 84-85) declares a special characteristic of documents
  made in another's hand
  Whatever transaction is settled mutually according to their wishes
  should be consigned to writing attested by witnesses and having at the
  head the name of the creditor and should be marked with the year the
  month the fortnight the day the names, castes and gotras (of the creditor
  and the debtor) titles due to Vedic affinities their own names and the
  names of their fathers and the like
  § Sabrahmacārika means a secondary name due to the (study of) the
  Bahvṛca and other śākhās (of the Veda) such as Bahvṛcaḥ (a student
  of the Ṛgveda) Kaṭhaḥ (a student of the Kaṭhaka Śākha of the Yajur-
  veda) ³ The same author (Yāj II 86-88) says
  ―――――――――――――――――――――――――――――――――――――――――――――――――――――――――――――――――――

1. What is written in one's own hand need not be attested by witnesses, while
   what is written in another's hand requires attestation. This verse is quoted in Radhabai v
   Ganesh I. L. R. 3 Bom. 7 where it was held that the court was not bound to apply strictly
   this rule to Hindu wills, since wills were not recognised by ancient Hindu Law and
   a will written by another man and signed by the testator was held to be valid though it
   was not attested.
2. The primary meaning of upādhi is a trick or deceit and not greed as
   Nīlakaṇṭha says.
3. Compare the Madhuban copperplate inscription of Harṣa (Epigraphia Indica vol
   VII p. 155) where the donees are described as chāndoga-sabrahmacāri and bahvṛca
   sabrahmacāri
   P 26 (text) § P 27 (text)

S II. 1 5 6
M.p 18 l. 26-p 191 22 ] DOCUMENTS 25
When the transaction ( agreed upon ) is completed ( i e it is written
out ), the debtor should place below it his name in his own hand (adding)
'what is caused to be written above in this ( deed ) is assented to by me,
the son of such a one,' witnesses should write down in their own hand (their
own names ) preceded by their father's name 'in this matter I, so and so,
am a witness These witnesses should be even ( in number ) Then the
scribe should write at the end ( of the document ) 'this is written by me,
so and so, son of such and such, at the request of both parties'
'Samāh' means 'equal' in number and qualifications (with the parties).
In some (digests) there is coalescence of the letter 'a' (after 'te') and (so
they read) 'asamāh' (meaning 'uneven in number') Nārada (says)
If a debtor does not know the alphabet (i e is illiterate), he should
cause his assent to be written (by another); if a witness (be illiterate)
he should cause (his attestation) to be written by another witness in the
presence of all the witnesses
It was stated (by Bṛhaspati) that royal writing is of three kinds;
Yājñavalkya (I 318-320) and Bṛhaspati exhibit (the peculiarities of) it.
Having made a gift of land or a corrody the king should execute a
writing (about the gift) for the information of future good kings On a
piece of cloth or a copperplate marked at the top with his seal, the king,
having written down the names of his ancestors and of himself, the
measurements of the thing gifted, a description of the boundaries of the
thing donated,¹ should issue a permanent edict bearing the date and his
own signature
Nibandhaḥ means 'what is granted by a king and the like to be obtained at
fixed times from mines and the like,'² pratigrahaḥ means 'that which is
received as a gift such as land and the like;' parimānm means 'its extent';
dānam means 'what is gifted such as a house'; chheda means 'its limits';
upavarṇam means 'their mention' So also (Bṛhaspati pp 306-307 vv18-19)
When a king pleased with the services, valour and the like, of a person,
grants a district and the like to him by a writing, it is called a prasāda-
likhita (a writing of favour) When a king, after a decision on hearing
the plaint, the reply and the evidence adduced, gives a writing to the
successful party, that is called a jayapatra (a writing of success, a decree)

1. 'Dāna . varṇanam' may also mean 'setting out the smṛti passages con-
   demning the resumption of gifts made by former kings' This is a preferable explanation
   and is supported by the verses occurring in almost all grants condemning the resumption
   of gifts. These verses and the following passage of the Mayūkha up to jayapatra are quoted in
   The collector of Thana v Hari I. L. R 6 Bom. 546 ( F B ) at pp 557--558
   2 The definition of nibandha is quoted in Ghelabhai v Hargovan I. L. R. 36 Bom.
   94 at p 101 as showing that it is not the king alone who can make a grant of a nibandha.
   *P 28 (text).
   V. M. 4

28 VYAVAHĀRAMAYŪKHA [ S. II. 1 1-3
[ M p. 191 23-p. 20 L15
Vyāsa speaks of the substitute of the king (in issuing royal edicts)
The minister for peace and war when ordered by the king himself may
write down the royal edict on copperplate or on cloth
The same author says that the king should write down his assent in such
a case
(The minister should write down) the boundaries and measurements
and the king should write with his own hand 'this has the assent of me
the king, so and so and the son of such and such.'
Sannives'am pramāṇaṁ ca—these words are to be connected with the pre-
ceding text. Vasiṣṭha mentions four kinds of royal writings
A śāsana (edict) should be known as the first, another is jayapatra
(then there are) ājñāpatra and prajñāpanā patra, royal writing is (thus)
four-fold.¹ "That by which feudatory chiefs, officers, and governors of
provinces are commanded (by the king) to carry out some business is
called an ājñāpatra (document of command). That letter by which
some business is communicated to a sacrificial priest, the family priest,
a preceptor and other revered and worthy persons is called a writing of
request.
Śāsana and jayapatra have been explained above. Yājñavalkya (II 91) says
When (a document) is in another country, when the letters (or words)
of it have become doubtful (or difficult to make out), when it is lost, or
its ink has been rubbed off, when it is stolen, torn into pieces, burnt, cut
asunder, (the king) should cause another writing to be made.
Nārada (pp. 77-78, v. 142) says
When a document is placed in another country, when it is shattered
into pieces, when its letters have become effaced, when it is stolen, then
time should be granted (for its production) in cases where it exists;
and if it does not exist the decision must rest on the (evidence of) the
witnesses (who saw it executed).
Draṣṭāraḥ means 'witnesses'; in the absence of witnesses, supernatural proof
(should be resorted to) as Kātyāyana says
In a judicial proceeding where there is no writing nor witnesses, (the
king or judge) should prescribe supernatural proof (ordeals, etc.).
Yājñavalkya (II. 92) says:
The genuineness of a document about which there is a doubt (or dis-
pute) may be established by (comparison with other) documents that
are (admittedly) in the hand of the person (who is alleged to have

1. Vide notes to V. M. pp. 53-54 for the quotations from Kauṭilya about ājñāpatra
   and prajñāpanāpatra.
   P. 29 (text)

S II 1 9-II.2-1 ] DOCUMENTS 27
V p 20 ll 15-36 ]
written the document in dispute )¹ and by presumption, by the (possibility
or otherwise of ) the meeting together ( of the parties ), by proof, by marks
( such as seals ), by the ( subsequent ) relations ( of the parties ), by the
( probability of the origin of ) title, and inference ²
Yuktiḥ means ' presumption from circumstances '; prāptiḥ means ' staying
together of the two parties ( to a document ) in the same place '; cihnam
means 'the impression of a seal and the like', kriyā means 'witnesses and
the like' ( other means of proof ), sambandhaḥ means ' relation in future'
( i. e. after the alleged date of the document ), āgamaḥ means ' some pro-
bable mode of acquisition ' ( of the document ),³ hetuḥ means 'inference '
Prajāpati says
"The decision about (the genuineness of) a royal writing ( grant ) should
be made with great effort by means of the examination of the king's own
signature ( thereon ), of the seal and of the handwriting of the scribe
(of the grant)
Bṛhaspati ( p 307 vv 23-24 ) declares what are vitiated documents
A document executed by a dying man, by an enemy, by one in fear,
by one distressed, by a woman, by one intoxicated,⁴ by one who is over-
whelmed in some calamity, and executed at night by fraud or force does not
become valid. Where even a single witness who (whose signature) is plac-
ed on a deed is vitiated ( on account of the above mentioned causes ) and
who is censured or where the writer of a deed is of that sort, that deed is
declared to be a false document
Here ends the section on writing
Now ( begins ) Possession ⁵
Nārada ( p 62 v 85 ) says
Possession acquires validity ( as evidence ) when accompanied by a
clear title Possession with a clouded title does not amount to proof
( is not accepted as a means of proof )

1 Compare section 73 of the Indian Evidence Act
2 For detailed explanation of the words yukti, prāpti, sambandha, āgama, hetu, vide
notes to V M pp 54--55 The Mit and the Mayūkha widely differ in the interpretation of
these terms
3 This means that it should be seen whether the document is produced from
proper custody
4 In Narbadabai v Mahadeo I, L R 5, Bom 99 at p 104 it is suggested that
' strīmatta ' should be taken as one clause meaning 'under female or aphrodisiac influence ,
but this is not correct, as Kāt v 271 separately mentions ' strī ' and ' matta '
5 In Lalubhai v Bai Amrit I L R 2 Bom 299 at pp 314--316 the whole of the
section on possession is critically examined and differences between the two views of
Vijñāneśvara and Nīlakaṇṭha are pointed out

• P. 30 (text)

98 VYAVAHĀRAMAYŪKHA [ S. II § 12
[ M p 90 l 36-p 91 l 9 ]
Vyāsa declares that possession (in order to be valid evidence) must be
characterised by other attributes just as it must be accompanied by title :
It is desirable that possession (in order to be valid) must have five
attributes (lit parts) viz it must have title behind it it must be of long
standing unbroken free from protest and in the presence (before the very
eye) of the opposite party
Nārada (p 62 v 86) declares that a claim cannot be established by mere
possession :
He who pleads enjoyment alone and no title at all should be considered
a thief on account of his (merely) putting forward the deceptive plea
of possession (which even a thief can put forward)
†This rule (that mere possession without more is of no avail) only applies
to such a period of time during which it is possible to preserve the memory of
title but the same author (Nārada p 62 v 89) says that mere possession
would be valid evidence (with reference to a period of time) of which it
is not possible to preserve memory
In cases falling within the memory of man it is desirable that possession
must be accompanied with title in order to be recognised as valid proof
of ownership of land In cases beyond the memory of man possession
continued successively for three generations (is valid proof of ownership
over land) on account of the absence of certainty (that there is no title)¹
Anugamābhāvād means as the conclusion that there is no title cannot be
drawn by means of (the proof, called) non-apprehension (anupalabdhi)
of what is fit (to be apprehended)² Even in the case of possession beyond the
memory of man if there is continuance (or persistence) of memory as to
the absence of title (in the person or persons who had possession) the same
author (Nārada p. 62 v 87) says
That sinful man however who enjoys (has possession) without title
even though for several hundred years should be punished by the king
with the fine prescribed for a thief
1 Vide pp. 58-59 of the notes to V M. for detailed explanation of this verse and
of smārta kāla. According to the Mit. smārta kāla (period of human memory) is
said to be one hundred years according to the Smṛticandrikā and Mādhava it is a period
of 105 years. Three generations would come to about 100 years. According to some smṛtis
it is a period of sixty years and also three generations. Mandlik's translation (p 21 ll 16-17)
is loose and does not bring out the technical sense of anupalabdhi
2. For detailed explanation of anugamābhāvāt and yogyā upalabdhi vide note 1 to
M pp 59-60. Anupalabdhi is the last of six pramāṇas according to the Mīmāṁsakas, apart
from pratyakṣa and inference In such cases as in this place there is no jar we apprehend
the non-existence of the jar by this means of anupalabdhi.
P 31 (text)