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

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)

S II 2 3-4 POSSESSION 20
M p 21 l. 21-p 22 l 10 ]
As to what the same author (Nārada p 68. v. 91) says
That which has been enjoyed even unjustly by the father and three
ancestors (of a person) cannot be recovered back (from that person)
since it has descended successively through three generations,
*it is to be interpreted to mean 'what has been enjoyed by three genera-
tions (of the present holder) including the father even without title and
even unjustly cannot be recovered back (from the present holder), much
less can it be recovered back when it is impossible to conclude that there is
absence of title ¹
'As to the text of Hārīta,
What has been enjoyed by three ancestors without any title whatever
cannot be recovered (from the present holder) since it has descended
through three generations
it is to be explained as 'without a title that can be easily perceived and
not as without even the semblance (or appearance) of a title'. As for the
text of Yājñavalkya (II 28),
That man, who first acquired a thing, should prove the source of his title
when he is proceeded against; his son or son's son need not (prove title),
in their case possession has more weight,
it means that only the first acquirer, if he cannot prove his title, is to be
fined (for unlawfully usurping possession) and not his son and grandson, but
it does not mean that in their case they succeed in their object (viz re-
taining the thing on the ground of possession) Hārīta says to a similar effect
That man however, who first acquires a thing is liable to be fined if
he cannot make out a title, and not his son or son's son; but both (the
latter) are liable to be deprived (by the court) of the thing possessed
like the acquirer himself ²
Yājñavalkya (II 29) says
If a person who has been proceeded against dies, his heir (or repre-
sentative) must establish title (as much as the deceased) In such a case
possession without title would not be a (valid) plea
1 The object of the verse is not to prescribe the impossibility of recovering after three
generations what is wrongly seized, but the object of it is to prescribe that possession for
more than three generations confers ownership when it is uncertain whether it originated in
no title The words 'for three generations' stand for asmārtakāla (time beyond human
memory)
2 The idea is that the original acquirer is liable to fine if he cannot prove his title
His son and grandson, if they cannot prove title, are not liable to be fined, but if they
cannot prove title in their ancestor and in themselves, they are liable to lose the thing
they enjoy, since their possession has not ripened into ownership by enjoyment for three
generations

• P 82 (text)

30 VYAVAHĀRAMAYŪKHA [ S. II. 2. 4-7
[ M p 23 ll. 10-32
Rikthī means a son and the like who partakes of the heritage, tam
means āgamam (title). (An objector says) it is inconsistent (or absurd)
to say that possession for a long time is proof (of ownership) for it is
seen (in the texts) that a claimant loses (his right to a thing) even
after possession (by another) for a short time as is observed by the same
author (Yāj. II. 24)
A person loses land in twenty years when it is enjoyed by another
for that period before his eyes and without protest (from him) and
chattels in ten years¹
*The reply (to the above objection) is this (verse of Yāj.) is to be con-
strued as laying down that the man loses the profits arising from the land
and the like for that period (i. e. 20 or 10 years) when he sees (another
enjoy his land or chattels) and yet does not protest (or cause interruption)
and not as laying down that he loses also the thing itself viz. the land and
the like (after 20 or 10 years) since (the latter proposition) would be
opposed to the text already cited 'he however who enjoys without title &c'
(Nārada p. 62 v. 87) Kātyāyana says
The wrongful possessor of cattle, women or males (slaves) or his
son should not rely upon (mere) possession (as his support or strong
point in case of dispute), this is the rule of law ordained (by the sages)
Nārada (p. 61 v. 81) says
A pledge (or mortgage) boundaries, a minor's wealth, an open deposit
a sealed deposit, women (female slaves) the property of the king (or
state) and of a Brāhmaṇa learned in the Vedas, these are not lost (to
the owner) by the (long) possession (of another)²
Manu (8. 146) says
A milch cow, a camel, a riding horse, an animal that is handed over for being
broken (or trained), these (and other things) used through the friend-
ship (or assent of the owner) are never lost (to their owner through
long possession of another)
Damyah prayujyate means which is delivered for being broken
Here ends the section on possession
1 This verse has been variously interpreted from comparatively ancient times.
Medhātithi on Manu (8. 147) gives three interpretations. Nīlakaṇṭha follows the Mit.
The plain meaning of the verse is in conflict with the proposition that possession for
hundred years is required to create ownership. Therefore the words 'bhūmerhānīḥ'
are interpreted to mean 'loss of the profits of the land' and not 'loss of the land itself.'
It is almost certain that at different times and by different writers different periods of adverse
possessions were laid down, and the tendency seems to be to bring down the period for
adverse possession. Vide notes to V. M. pp. 63-64 for further details.
2 This is almost the same as Manu. 8. 149.
P. 23 (text)

S.II 3 1-8 ] WITNESSES 81
M p 221 3.-p.231 24 ]
Now ( begins the chapter about ) witnesses
In Toḍarānanda¹ Nārada says (p 79 v 147)
In doubtful matters when two litigants are disputing, a clear perception
( knowledge or conclusion ) results from witnesses, since the latter have
either seen, heard or experienced the matter in dispute.²

• Bṛhaspati (p 299 vv 1-2) enumerates the kinds of witnesses
  Witnesses are declared (in the smṛtis) to be of twelve sorts, viz a subscribing
  witness, one whose name is caused to be written (by another), concealed wit-
  ness, one who has been reminded, a member of the family, a messenger, one
  coming by chance (not called on purpose), an indirect witness, one who is
  confided in by both sides, the king, the (presiding) judge, the people of
  the village
  Likhitaḥ³ is one who (whose name) is placed on the document by the plain-

42 VYAVAHĀRAMAYŪKHA [S. II. 3. 3-5. / N p. 78. l 24 p. 24. l. 13]
of uttara witnesses there must be three, four or five A single witness
alone would be enough for proof if he be a dūtaka (a messenger) an
accountant one employed in the business (by both parties as their inter-
mediary) the king or the presiding judge.
Yājñavalkya (II 72) declares tha even one witness of the likhita and other
sorts may be accepted (as sufficient for proof) if both sides consent
With the consent of both parties even a single person who knows the
dharma becomes (sufficient as) a witness.
Vyāsa says
Even one witness whose actions are pure who knows the dharma
whose word is known from experience (to be true) is enough for proof
(of a thing) especially in sāhasa (offences attended with force such as
murder robbery rape, &c)
Anubhūtavāk means one whose word is generally seen to be true
Kātyāyana says that one witness, even though not reputed to be a veracious
person is sufficient in cases of deposit and the like
Even a single person may depose as a witness in the case of a deposit
made secretly (in his presence), as regards things borrowed for use
even a single person sent by the plaintiff (i e the owner of the thing to
the borrower with the thing) may be (enough) as a witness.
Yācitam means ornaments nd the like such as ear-rings brought (from
the owner thereof) on the occasion of a marriage or the like The same
author (Kātyāyana) declares even one person sufficient as a witness in dis-
putes about articles for sale
That man by whom an article for sale was made (finished or manu-
factured) should identify it In a dispute (about that article) he though
alone (as a witness) is declared to be (sufficient) proof
And Vyāsa declares the qualifications of them (of witnesses)
Those who know the dharma persons having sons, persons born in
distinguished¹ families those who are well-bred those who (generally)
speak the truth, those who perform the rites prescribed in the Vedas and
the smṛtis, persons free from hatred and envy those who are śrotriyas
(learned in the Vedas) persons who do not depend upon others who are
learned who do not travel from place to place and those who are in the
prime of life should be made witnesses by the wise in disputes about debts
and the like
1 The word maulāḥ is rendered thus by the Kalpataru and the Vīramitrodaya
Madanaratna explains those who know the preceding circumstances of the transaction
in dispute) Medhātithi (on Manu 8. 62) explains maulāḥ also as those who are resident
of the same place as the parties
P 35 (text)

S II.8 6-7 ] WITNESSES 33
M p 24 l 14-p 25 16 ]

• Nārada ( p 81 v 155 ) says
  ( In disputes) among śrenīs (guilds) the office-bearers (or heads) of the
  śrenīs, among groups or associations¹ the heads thereof, among those who
  stay outside (the village, i e who are untouchables) persons' who live out-
  side, and (in disputes) among women, women become (proper) witnesses
  Kātyāyana speaks of members of associations ( vargas )
  Persons wearing marks peculiar to their sects ( such as Bauddhas ), śrenīs
  ( guilds ), pūgas and other communities of merchants and all others who
  are banded into a group ( or association ) these are called vargas by
  Bhṛgu The leaders ( or heads ) of dāsas (serfs ), cāraṇas (bards ),
  wrestlers, of those who subsist ( by driving or riding ) elephants, horses
  and chariots and of groups of every sort are known ( in the smṛtis ) to be
  vargins
  Yājñavalkya ( II 69 ) speaks of persons of other castes ( as eligible witnesses ):
  It should be known that witnesses ( in a cause ) ought to be at least three;
  they should be devoted to performing the rites prescribed in tha Vedas and
  smṛtis, ( they should be ) of the same caste and the same varṇa ( class )
  as that of the litigants or men of all castes may be allowed (as witnesses)
  for all castes.
  The same author ( Yaj II 70-71 ) mentions those who are to be excluded ( as
  witnesses )
  A woman, a minor ( under 16 years ), an old man ( above 80 ), a gambler,
  one intoxicated, one possessed, a person reputed to be guilty of a deadly
  sin, an actor, an unbeliever ( or heretic ), a forger ( of deeds or coins ), a
  deformed person, one degraded from caste ( for some sin or wrong-doing ),
  one interested ( in a party to the suit ), one interested in the subject
  matter ( of dispute ), a friend ( or associate ), an enemy, a thief, an adven-
  turer ( or desperado ), one known to be a liar, one deserted and the like
  are not ( competent ) witnesses
  Nirdhūtaḥ means ' one abandoned by his kinsmen ( or friends )'; the word
  ādi ( the like ) includes slaves and others Bṛhaspati (p 302 v 29) says
  The mother's father, the father's brother, the wife's brother, the maternal
  uncle, the brother, a friend and son-in-law these are not ( competent )
  witnesses in all disputes
  § Nārada (p 83 v 161 ) says
  He, who not being named ( cited ) as a witness, comes of his own accord
  and deposes, is termed in the śāstras a volunteer ( witness ) He does not
  deserve to be a witness

1. For śreṇi, vide above p 5 n 1. The word 'varga' means ' a group or association in
   general ' and is of wider import than śreṇi It 'may apply to any association or group of
   people banded together for some purpose.
   *P 86 ( text ) § P. 87 ( text )
   v. M 5

84 VYAVAHĀRAMAYŪKHA [ S. II. 3. 7-9
M. p. 25 ll. 6-28
Kātyāyana says ¹
If one of the subscribing witnesses that are cited by a disputant deposes
against the others all of them become no witnesses ² ( i e become useless or
incompetent )
Nārada ( p 89 v 188 ) declares that even such ( persons as are above declared
to be incompetent witnesses ) are in certain cases allowable as proper
witnesses
Those even, who have been mentioned ( in verses 178-187 of Nārada s
ṛṇādāna chapter ) as incompetent witnesses such as slaves, impostors and
the like become ( competent ) witnesses, having regard to the gravity of
the matter ( in dispute )
In the case of the absence ( of competent witnesses ) Manu ( 8 70 ) says
In the absence ( of competent witnesses ) evidence may be given even by
a woman, by a minor by an old man by a pupil or kinsman by a slave or
hired servant
Yājñavalkya ( II. 72 ) says
In ( charges of ) adultery theft assault and slander and in all
offences attended with force ( such as manslaughter ) any person may be
a witness.
In this passage, ³ although adultery and the like fall under the category of
sāhasa they are separately mentioned in order to refer to such adultery and
other offences as are clandestinely committed Uś'anas says
A slave a blind man a deaf person a leper a woman a minor an old
man and the like even these are regarded as ( competent ) witnesses in
sāhasa ( offences due to force ) when they are not concerned ( in the
matter to be tried )

• Anabhisambaddhāh means when they are not partial ( to one side )
  Bṛhaspati ( p 302 v 24 ) says
  A litigant may point out faults in the witnesses cited ( by the opponent)
  to prove the matter in dispute if the faults really exist A litigant
  attributing faultsto witnesses who are faultless is liable to pay a fine
  equal ( to the matter in dispute ) ⁴

1. The word likhitānām and nirdiṣṭānām may also mean that are put down as
   witnesses in the plaint or reply and are cited as witnesses at the time of proof ( kriyā )
2. Vide notes to V M. p 70 for detailed explanation. This rule of Kātyāyana was
   to apply only where the witnesses that give conflicting testimony were equal in number or
   equal in merit. Compare Nārada ( ṛṇādāna 160 ). Vide notes to Kāt. v 8-2
   3 Compare a similar remark above p 8.
   4 This would apply only where it is possible to set a monry value on the subject matter
   of dispute. Hence Aparārka and Vīr explain it as meaning 'the fine imposed on a false witness
   P 33 ( text )

S. II. 3. 9-10
M. p. 25 l. 28-p. 26 l. 13 ] WITNESSES 35
In this passage the word vādī ( litigant ) means ' the defendant '; tatsamam
means 'equal to the amount which is the subject of dispute ' Vyāsa says :
The faults of the witnesses should be stated by the defendant before
the court They ( the witnesses ) should be made ( by the judge ) and
the assessors to refute all the faults put down in writing ( against them )
The meaning is that the witnesses should be required by the sabhyas

• ( assessors ) to give their explanation with regard to their faults as witnesses
  written down on paper The same author ( Vyāsa says ) .
  If ( the witnesses )¹ admit ( the faults pointed out in them ), they do
  not at all deserve to be witnesses if it be otherwise ( i e if the faults are
  not admitted), they ( the faults ) should be established by the defendant
  with evidence If the defendant cannot clearly establish ( the faults urged
  by him ) against the witnesses he should be made to pay a fine When
  the witnesses ( cited by the plaintiff ) are proved ( to possess the faults
  pointed out by the defendant ), they are to be rejected, being devoid of
  the characteristics of ( competent ) witnesses ( The plaintiff ) should be
  made to pay a fine in the same way ( as the defendant, when the latter
  fails to prove the faults alleged ) according to the procedure laid down in
  the s'āstra, if the plaintiff, who relies solely on the goodness of his witnes-
  ses ( in whom faults are established), does not care for other means of proof.
  Atonyathā means ' if not admitted, ' bhāvanīyāḥ means ' should be made
  to admit ' ( their faults ), kriyayā means ' by evidence ' The connection
  of the words is ' not establishing ( the faults ) clearly ' ( i. e sphuṭam is to
  be connected with abhāvayan ) As to the text
  Those faults of witnesses that are ( obvious ) to the members of the
  court or that follow from the ordinary experience of the world should be
  considered ( by the members of the court of their own accord ) Such
  faults should not be required to be established, since ( such witnesses )
  should be excluded ( by the court ) on account of their ( patent ) faults²
  1 Mandlik ( p 25 ) translates this as ' in the answer of admission witnesses are never
  fit to be called '. This is wrong It has already been stated that in an answer of admission
  no evidence is necessary. The author is now on the subject of faults of witnesses The
  explanation of ' atonyathā bhāvanīyāḥ ' that follows makes it clear that the translation
  should be as above
  2 This verse is ascribed to Vyāsa by Aparārka, Sm C and Vīr, while Parās'ara-
  Mādhavīya ascribes it to Kātyāyana Vide notes to V. M pp 72--73 for various readings
  and detailed explanation. Even with the reading ' sabhāsadāṁ dūṣaṇam ' it is possible
  to translate as above, the literal meaning being ' what apears to be a patent fault of the
  members &c ' The word doṣavarjanāt may also mean ' in order that the fault called
  anavasthā may be avoided '. If witnesses were called to prove defects in witnesses other
  witnesses might be cited to prove the former set to be false and the process might have
  to be carried on ad infinitum,

36 VYAVAHĀRAMAYŪKHA [ § II. 3.10-11
[ M p 26 ll 13-34
"It has reference to ( faults in ) trustworthy witnesses that ( faults ) can be
ascertained from ordinary experience of the world. When the defendant has
no knowledge of the faults ( of the witnesses of the plaintiff ) the same
author says
Those faults of evidence ( witnesses and documents ) that are latent
should be declared by him who disputes ( the evidence ) at the ( proper )
time and the patent faults should be declared by the members of the
court ( sabhyas ) at the proper time after exhibiting what the sāstra ( the
works on law ) dictates ¹
The meaning is that latent ( concealed ) faults should be exposed by
expounding ( by reference to or reliance on ) the sāstra before the (actual)
examination of the witnesses. And Bṛhaspati ( p 302 v 250 ) says that
they ( the latent faults ) should not be exposed after that ( stage )
Whatever faults in ( or objections to ) a document or a witness there
may be must be declared at the time when the trial is proceeding but the
( litigant ) should not ( be allowed to ) declare the faults after they ( the
witnesses ) have deposed
Uktān means when they have said ' i e when they have begun to speak ²
The termination of the past passive participle ( kta in Panini s terminology )
is added ( here in uktān ) in the active sense according to the rule ³ the
affix kta ( i e ta ) is added to a root to denote the completion of the first
of a series of continuous acts and in the active voice Kātyāyana declares
the punishment in this matter
He who after a matter has been deposed to would find fault with
( raise objections to ) witnesses in whom he found no fault before and can
not give ( adequate ) reasons for that for not pointing out the faults
earlier shall be mulcted in the lowest amercement ⁴
If the witnesses be themselves unable to refute the objections raised against
them the party ( whose witnesses they are ) must do it so says Bṛhaspati
( p 302 v 26 )
— — — —
1 The proper time for pointing out the faults of witnesses by litigants is when the
hearing begins and for the judge and the assessors when the judgment is being pronounced
The śāstras ( smṛtis ) lay down rules as to circumstances that vitiate oral and written
testimony
2 Mandlik translates ( p. 20 ) uktān as 'th speaker beginning to speak ( i e all be
stopped); this is the meaning' This is quite wrong Vide notes to V M p 74 The word uktān
(which is a past passive participle ) would naturally be connected with dvān in the
preceding half, but then the sentence hardly makes any sense Here uktān is explained
as an active past participle and connected with witnesses
3 This is Pāṇini III. 4 71 Vide notes to V M p 1
4 According to Manu 8. 138 the lowest amercement was 250 panas the middle
was 500 and the highest was 1000.
p 50 ( text )

S II § 11-15 ] WITNESSES 37
M p 27 ll 1-25 ]
He, whose documents or witnesses are found fault with in a suit, will
not succeed in his cause, as long as he has not cleared that (the docu-
ment or the witness of the faults pointed out).
Tat (in the verse above) signifies 'a document and the rest'. Kātyāyana
prescribes the punishment for those who adduce false witnesses.
*He, who, through a desire to succeed in his cause, cites false witnesses,
should be deprived of all his belongings and should be then made to lose
the subject matter (of dispute) ¹
Nirviṣayam means 'deprived of the property that is the subject matter of
dispute'. Nārada (p. 90 vv. 193–196) declares the means for ascertaining
false witnesses.
He, who, on account (of the consciousness of) his own wrong-doing
(guilt in perjuring himself), appears like one uneasy, shifts from place to
place (when giving evidence), runs after every one (he sees), who
suddenly coughs much, again and again breathes deeply, who scratches the
ground with his feet, who shakes his arms and garment, whose face changes
colour and whose forehead perspires, whose lips become dry, who looks
above and sideways, who without being asked talks much and irrelevantly
as if he were in a hurry, should be known as a false witness (The
king) should punish such a sinful one severely'.
Kātyāyana and also Manu (S 87, 79-80) state the manner of putting ques-
tions to witnesses •
^The judge, himself being pure, should ask in the forenoon the witnesses
of the regenerate classes who are pure to depose to the truth, with their
faces turned to the east or north, in the presence of (an image of) the
divinity and Brāhmaṇas. §The judge should in a soothing tone question
the witnesses in the court-room and in the presence of the plaintiff and
the defendant in the following manner; 'All that you know concerning the
reciprocal actions of these two' (litigants) in this matter depose truthfully,
for you are in this matter the witnesses
In disputes about kine, horses and the like the same author (Kātyāyana)
declares the (necessity of) the presence of the subject-matter of dispute (at
the trial);
In the presence of the plaintiff and the defendant and of the subject
matter of the suit (the judge) should urge (require) the witnesses to give
evidence to their face and never behind their back. (Evidence) may
in rare cases be taken in the vicinity of the subject-matter (of dispute)

¹ Tataḥ may mean 'on account of that fault' and nirviṣayam according to the
Smṛticandrikā means 'banished from the country',

• P 40 (text). § P 41 (text).

38 VYAVAHĀRAMAYŪKHA [ B. II s. 15-16
[ M. p. 27 l. 35-p. 28 l. 20
even in the absence of both (the litigants) This rule holds good in
(disputes about) quadrupeds, bipeds and immoveable property In all dis-
putes about articles that are weighed (like gold) or that are counted or
measured (the judge) may require the witnesses to depose even in the
absence (of the subject matter of dispute) [but not in other cases
Tayorapi vinā kvacit—this means even in the absence of them both i e
of the plaintiff and the defendant¹ but in the presence of the subject of dis-
pute in some cases i e in the case of quadrupeds and the like, taulyam
means gold and the like that are capable of being weighed, gaṇimam
means coins and the like that can be counted out, meyam means rice
wheat and the like which can be measured abhāvepi means even in the
absence of the subject matter of suit, kriyākāraṇe means in judicial pro-
ceedings The same authority (Kātyāyana) says that in disputes relating
to homicide the deposition of witnesses should be taken in the presence of
(an image or temple of) Śiva:
In the case of the killing of living beings, (the judge) should make the
witnesses depose in the presence of Śiva when no trace (or remnant) of
the death is left, otherwise (i e. when traces exist) a witness should
not be made to depose thus (i e. in the temple of Śiva)²
*Tat means the deposition of a witness. It should be taken (in the
presence of Śiva) in the absence of any marks of the homicide, anyathā
(otherwise) means when there are marks of the killing The same
author (Kātyāyana) says
The king should not cause procrastination in recording the deposition of
witnesses. Great sin, viz failure in performing ones duty results from
procrastination
Nārada (p 91 v 169) says
Having summoned the witnesses and having bound them firmly by
oaths, (the judge) should separately question all the witnesses whose
character (conduct) is well-known and who are familiar with the matter
in dispute.

1. Vīr explains this as Nīlakaṇṭha does. But the Smṛticandrikā and Parāśara-
   mādhavīya explain differently viz. even apart from the two places (evidence may be
   taken) The two places where witnesses may depose are the court and in the case of
   immoveables near the property itself. Evidence in the case of homicide may be taken at
   the place of crime.
2. This is a somewhat difficult verse Some digests read in the presence of the dead
   body (śava for Śiva). This latter seems to be a better reading. Nīlakaṇṭha's way of
   taking tat as referring to deposition and connecting atīte with etakārya is far-fetched.
   He had to resort to it as he read Śiva-sannidhau Vide notes to V M. p 75 for details.
   42 (text)

S. II. s. 16-19 ] WITNESSES 39
M.p.281. 26-p. 29 l.26 ]
Vasiṣṭha says :¹
What was seen by the ( witnesses ) together should be deposed to by
them in the same way ( i. e they should depose simultaneously ); but
( what was seen ) by the witnesses separately should be related by each
separately. Where a matter has become known to witnesses at different
times ( the judge ) should make them depose one by one. This is the rule
( of examining witnesses ) laid down ( in the s'āstras ).
Manu ( 8 113, 102 ) says :
A² Brāhmaṇa should be made to swear by (his) truth, a Ksatriya by his
riding animal and weapons, a Vais'ya by his kine, grain and gold, a S'ūdra
by ( invoking on his head ) all the sins ( in case he deposed falsely ).
Brāhmaṇas who tend herds of kine, who are traders, mechanics or actors,
who are hired servants or money lenders, should be treated as S'ūdras
( for purposes of examination as witnesses ). Those³ who are fallen from
their proper duties, who subsist upon food given by others and yet who
desire the status of a man of the regenerate classes should be treated
like S'ūdras.
*The meaning ( of satyena ) is if you speak falsely, thy (merit due to) truth
will perish; such like should be the mode ( of oath for a Brāhmaṇa ) The
test for determining the ( truth or falsehood of the ) deposition of a
witness is declared thus :
If ( what a witness ) deposes is not less than ( what is affirmed by the
party citing him ) in respect of place, time, age, the substance ( dravya ),
the name, the caste, the measure, ( the judge ) should declare that the
matter in dispute has been proved ( by that party )
Yājñavalkya ( II. 78 ) lays down a rule for decision when witnesses contradict
each other
In case of contradiction the testimony of the majority should be accepted
( i e prevails ); if ( the witnesses ) are equally divided, the testimony of
the virtuous set and if there be a conflict ( of testimony ) among virtuous
witnesses, the testimony of the most virtuous should be accepted.
The same author ( Yāj II 76 ) prescribes the fine for not deposing after
having agreed to give evidence :

1. These two verses are ascribed to Kātyāyana by Aparārka These verses are
   not found in the printed Vasiṣṭhadharmaśāstra ( B. S. series) nor in its translation
   ( S. B E. vol. XIV ).
2. This verse occurs in Nārada also ( ṛṇādāna 199 ).
3. This verse is not found in Manu.
   *P. 48 ( text. )