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

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. )

40 VYAVAHĀRAMAYŪKHA [ S. II & 19-21
[ M p 22. l. 16-p. 30. l. 2
A person not giving evidence should be made by the king to pay the whole
debt together with a tenth (part) added thereto on the forty-sixth day
(after he is summoned).
Sarvam (the whole) means including the interest. sadaśabandhakam
means 'together with a tenth part' The Mitākṣarā states that the tenth
part is to be taken by the king and the debt together with interest is to be
taken by the creditor The same author (Yāj. II. 82) lays down the
punishment for one who having knowledge (of the matter in dispute) does
not agree to give evidence as a witness
He, who, having been called upon (along with others) to give evidence
as a witness conceals it from others under the influence of folly, should
be made to pay an eight fold fine; if (he be) a brāhmaṇa he should be
expelled ¹
Such a witness is to be fined eight times as much as the fine inflicted in case
of losing the suit But a brāhmaṇa unable to pay the fine is to be expelled
from the country and a kṣatriya and the like are to be made to do acts
proper for them (or to which they are accustomed) So says the Mitākṣ-
arā. Manu (8. 108) says
That witness who after giving evidence is seen to meet with (the mis-
fortunes of) disease fire or a relative's death within seven days (of
his deposition) should be made to pay the debt and a fine
*Yājñavalkya (II. 80) says
If even after some witnesses have deposed (as to a matter in dispute)
other witnesses more meritorious (than those already examined) or
double in number (of those already examined) depose to the contrary
then the witnesses first examined are false ones ²
Nārada (p 21 v 62) says
³After a judicial proceeding has been almost finished proof whether
documents or witnesses, would be useless unless the same had been
announced before ⁴

1. The Mit. on Yāj. shows that this verse rather applies to a person, who, having
   agreed to give evidence and being cited along with others to depose, afterwards at the trial
   denies to other witnesses that he is a witness. It is Yāj. II. 77 that is the proper verse to
   be cited for the purpose of laying down a punishment for him, who, though he knows the
   matter in dispute, does not agree to come forward as a witness.
2. Vide notes to V M. pp. 77-78 for explanation. This can only apply to a case
   where judgment has not already been pronounced, as th next verse of Nārada makes clear
3. Mandlik (p. 32) Dr Jolly (S. B. E. vol. 33 p 21 note) and Gharpure (p. 41)
   translate nirṇīta by the word decided But this is wrong. nirṇīta does not
   mean nirṇīta It literally means cleansed thoroughly i. e heard completely but
   not finally decided Besides that interpretation would be opposed to the rules about
   review of judgment. Vide notes to V M. pp 79-80.
4. Compare C. Pro. Code Order 7 rule 14 (2) and 18
   p 41 text]

S. II. 8. 22. ] WITNESSES 41
M. p. 80 ll. 2-11 ]
Yājñavalkya ( II 83 ) states that in some cases witnesses may depose falsely
and declares the penance therefor :
Where a man of the four castes would be liable to suffer death ( if the
truth were told ), there a witness may depose falsely; for purification from
that ( sin of falsehood ) an oblation of cooked rice should be offered to
Sarasvatī by the regenerate classes ¹
Viṣṇu ( S 17 ) prescribes the penance for a śūdra ( deposing falsely ) ' a
śūrad should give one day's fodder for ten cows ' Ārhāhikam means ' as
much as would be sufficient to feed them one day '
Here ends the section on witnesses
Now begins the section on ordeals §
That (an ordeal) determines a matter which cannot be decided by means
of human proof It is of two kinds according as it determines at once or
after some time Bṛhaspati ( p. 315 vv 45 ) mentions the varieties of the
first kind of ordeal ;

• Balance, fire, water, poison, kosa ( sacred libation of water ) as the
  fifth, the sixth is declared to be rice, seventh is a hot piece of gold, the
  eighth is the ploughshare and the ninth is known as springing from
  dharma.
  Yājñavalkya ( II. 95 ) declares that the first five are to be resorted to only
  in cases where the matter charged is of great value or is of a serious nature :
  These ordeals, viz balance, fire, water, poison, kosa are meant for
  clearing ( persons ) of serious charges ( or in valuable matters ), when the
  complainant ( or plaintiff ) declares himself ready to undergo fine ( follow-
  ing on a defeat in the trial by ordeal )
  S'īrṣakasthe ² means ' who undergoes the fine consequent upon defeat. '
  Pitāmaha says :
  ( The judge ) should prescribe the balance and the other ( four )
  ordeals for those who are proceeded against ( or complained against ) with
  assurance The ordeal of grains of rice and kos'a ( ordeal ) are to be
  employed in cases of doubt ( as to whether the defendant is the person
  who committed the wrong )

1. Sarasvatī being the goddess of speech it was appropriate that an offering should
   be made to her for deposing falsely. Compare Manu 8. 105.
2. The word ' S'īrṣakasthe ' is thus explained. S'īrṣam means the head i. e. the
   fourth stage of a judicial proceeding ( viz. the final judgment ) It therefore indicates
   fine which is imposed on the defeated party. Therefore the word means ' one who offer
   to undergo the fine of defeat '.

• P. 45 ( text ). § Both Stokes and Mandlik omit the treatment of ordeals.
  V. M. 6

42 VYAVAHĀRAMAYŪKHA
Avaṣṭambhaḥ means certainty. Therefore the koṣa ordeal can be employed
in a charge made with certainty about the wrong-doer and also in one where
there is a doubt. The Kālikāpurāṇa says:
In charges of adultery, of theft, of intercourse with women who are
forbidden, when one is accused of having committed a mortal sin, and in
cases of serious (or violent) offences against the king, ordeals may be
employed. In serious charges (of adultery etc.), in civil wrongs (such as
non-payment of debt) and in cases where there is reviling, the king should
prescribe ordeals with an undertaking (on the part of the complainant or
plaintiff) to pay a fine (in case of opponent's success in the ordeal). In
grave charges such as that of adultery, and in cases where there are many
accusers (or plaintiffs) an ordeal may be prescribed in order that (the
person accused) may clear himself (of the accusation), but without an
undertaking (by the accuser) to pay a fine (in case of opponent's success in
the ordeal).
Agamyāḥ (in the first verse from the Kālikā-purāṇa) means women
other than others' wives, such as prostitutes and the like that are common
(to all who visit them)¹, the word śaste means the same thing as abhi-
śaste (i.e. charged with the commission of a great sin), sāhasaṁ means a
wrong done with violence (or force), avarṣaḥ means abuse, śiraḥ means
fine. *The attribute (adultery with) another's wife (to the word abhiśāpa)
is not literally intended, since what is intended to be repeated (or mentioned)
as a topic (about which something is to be predicated) is abhiśāpa (grave
charge)²; similarly the words 'where there are many' etc. also (are not to be
literally understood). Therefore, even in the absence of individual com-
plainants, an ordeal may be resorted to in the case of all charges (of mortal
sins). The mention of the purpose in the words śuddhiskāraṇāt (for the
purpose of clearing one's character) can also be well construed on this inter-
pretation and also the following general proposition (can be well understood
or construed).

1. This is a somewhat unnatural sense of agamyāḥ. That word generally refers
   to such women as are forbidden for sexual intercourse (on the ground of its being incest).
2. Here Nīlakaṇṭha refers to a Pūrvamīmāṁsā principle (which follows from
   Jaimini III. 1. 13-15). Vide notes to V. M. pp. 80-81. The conclusion of Jaimini is
   that though the Vedic sentence 'he cleans the graha (cup)' uses only the singular graha,
   yet all cups are to be cleansed, i.e., the singular number is not strictly intended and
   stands for the plural also. In the same way the word paradārābhiyuktādiṣu already
   occurred in the first verse. It is again repeated in the third verse where the provi-
   sion to be laid down (the vidheya) is that an ordeal may be resorted to for clearing
   one's character. The subject of which this is predicated is really abhiśāpa (a grave
   charge) and not paradārābhiyukta, the word paradārā being only an attribute (viśe-
   ṣaṇa may be taken to include other abhiśāpas also, just as the singular number in-
   cludes the plural). So also even if there be not many accusers, or even when no accuser, an ordeal
   may be resorted to for clearing one's character.
   P. 40 (text)

ORDEALS 43
An ordeal) may be resorted to in cases of sedition and in ( grave) sins¹
( Yāj II 96. ),
Nārada says :
An ordeal without an undertaking to pay a fine may be prescribed for
those who are suspected by kings (as offenders), who are pointed out by
thieves ( as their associates ) and who are intent on clearing themselves
An oath is divine proof which determines a cause after a time Nārada ( p
100 vv 248 and 250 for first verse and last half ) enumerates its varieties .
Truth², riding animals and weapons, kine, grains and gold, the feet of
a deity and one's father ( or ancestors ), one's gifts and meritorious
actions ( these may be sworn by ) One may ( solemnly ) touch the head
of one's sons, wife or friends ( by way of oath ) or in charges of all
kinds ( whether serious or trivial ) the drinking of kos'a ( sacred water )
may be prescribed These are proclaimed by Manu as oaths ( to be
resorted to ) in trifling matters
Kos'a, though it determines ( a dispute ) after the lapse of time, was enume-
rated among the first series ( i e among tulā &c above that decide a matter
immediately ), since it can be resorted to in serious charges also Yājñavalkya
( II 96 ) says :
One of the two may undergo ( the ordeal ) if he likes, while the other
may undertake to pay the fine ( in case of defeat by ordeal )
*This option can apply only if the complainant ( or plaintiff ) so desires, but
if he be unwilling, ordeals are to be prescribed for the accused (or defendant)³
alone, according to the dictum of Kātyāyana quoted in the Divya-tattva⁴ :
No one should ask the plaintiff or complainant to undergo ordeal ; those
who are adepts in ordeals should offer ordeals to him who is the defendant
( or accused ).
Now ( begins ) the treatment of ( the topic of ) those who are fit ( to
undergo ordeals ) Yājñavalkya ( II 98 ) says •

1. Yaj uses the general word pātaka and not paradārābhiśāpa ( which [is a particular
   sin ) when prescribing an ordeal without fine, hence in the Kālikāpurāna also the word
   paradārābhiśāpa is merely illustrative and includes other grave sins also (like brahmahatyā),
   2 With the first verse, compare Manu 8 113 'Satyena &c ' cited above Truth
   is to be taken with Brāhmanas, riding animals and weapons with Ksatriyas, kine &c
   with Vais'yas. Any one may swear by the feet of his ancestors or of a deity The verse
   ' he may touch &c ' does not occur in the printed Nārada Compare Manu 8 114.
   3 The general rule as stated by Kātyāyana above was that the complainant ( or
   plaintiff ) was not to undergo a divya, but that it was the accused or defendant who was to
   do so But if the complainant chose he could himself undergo the ordeal and the defendant
   or accused may then undertake to pay the fine.
2. This is one of the works of Raghunandana,

• P, 47 ( text )

44 VYAVAHĀRAMAYŪKHA
The (ordeal of) balance (is prescribed) for women, minors, old men,
the blind, the decrepit, brāhmaṇas and the diseased; fire or water (ordeal)
is prescribed for (Kṣatriya and Vaiśya respectively) and for s'ūdra
seven yavas of poison.
Strī means (any woman) without reference to caste, age or any particular
condition. bāla means a person of the age of sixteen and also of any caste;
an old man is one who is beyond eighty years of age. Balance alone out of the
several ordeals is prescribed for a brāhmaṇa at times which are common to
all divyas as detailed later ¹ but when it is the proper time for fire and other
ordeals, they also can be administered (to brāhmaṇas). It is hence that
Pitāmaha says:
Clearing off (from guilt) by means of the ordeal of kośa is prescribed
for all the (four) varṇas (principal castes). All these (nine ordeals)
are proper for all persons, but not poison (ordeal) for a brāhmaṇa.
The Kālikā-purāṇa says:
For the last of the varṇas ² (i. e. for the s'ūdra) should be offered
(the ordeal of) the heated golden māṣa.
Nārada (p. 101 v. 255 and p. 118 vv. 313-315 for last four verses) says:
(The judge) should always examine by (the ordeal of) balance eu-
nuchs, those devoid of courage (or mettle), those whose minds are in
distress on all sides, minors, old men, diseased persons and women.
*Poison is not prescribed (as an ordeal) for women nor water; (the
judge) should consider the hidden truth about them by means of the
balance, the kośa and the like. Clearing (of guilt) by water is not
prescribed for those who are diseased (or distressed), nor poison for those
who suffer from biliousness; the ordeal of fire is not prescribed for those
who suffer from white leprosy, who are blind and who have bad nails.
Women and minors are not to be plunged (in water as an ordeal) by
those who know dharmaśāstra, and also those who are diseased, old or
weak. (The judge) should not plunge in water those who are devoid
of energy, who are ground by disease and those who are distressed; if
they plunge in water they might die at once since they are known to have
little vitality; these should never be plunged in water (as an ordeal),
though they come (before the court) charged with heinous crimes; nor
should (the judge) cause them to carry fire (as ordeal), nor should he
clear them with poison.
115. Vide the verse of Pitāmaha quoted below "Caitra...... these are the months
common &c.
116. According to the Vīr., varṇāntya means one who borders on the varṇas i. e.
a Mleccha.
P. 43 (text)

ORDEALS 45
Viṣṇu (Viṣṇu Dh S 9 20 ) says:
Water should not be prescribed for the phlegmatic, for the diseased, for
timid people, for those who suffer from difficulty in breathing and from
cough¹.
Kātyāyana says:
Fire is not (prescribed) for those who work in iron (blacksmiths),
nor water for fishermen nor should poison be ever offered (as ordeal) to
those who know magic spells and yoga (The judge) should not prescribe
the ordeal of rice for one who is observing a vow or one who suffers from
a mouth disease
*Vratī means 'one who observes the vow of subsisting on milk and the like.'
Pitāmaha says:
Kośa should not be offered by the wise to those addicted to wine and
women, to gamblers and to those who are unbelievers (atheists).
Nārada (p 117 v 332) says:
The offering of kośa (as an ordeal) should be avoided as regards him
who has once been found guilty of a grave crime, who is destitute of
dharma, who is ungrateful, who is impotent or who always finds faults,
who is an atheist and who is sinful (or in whom faults exist).
Kātyāyana says:
The determination (of disputes) among the untouchables, among the
lowest people, among slaves, among mlecchas who are evil-doers and
among those who are born of unions in the reverse order of castes (i. e
unions of females of higher castes with males of lower castes) should not
be carried out by the king (in his court); on occasions (of dispute among
them) he should direct them to undergo ordeals well-known among
them.
Tatprasiddhāni means 'balance, serpent and the like' If the person who
should undergo an ordeal is unable to do so, the same author (Kātyāyana (
as quoted in the Divyatattva says:
(The king or judge) should prescribe the proper (ordeal) without
conflict with the time or the place. In case of inability (lit accident,
reverse of fortune) ordeal should be carried out through a substitute. This
is the rule (of law)
Anyena hārayet mean 'the ordeal should be performed by a substitute;'
viparyaye means 'when the person to undergo the ordeal is unable to do

1. This is not in the original a verse but a 'prose sūtra, while Nīlakaṇṭha's reading
   makes it a verse. Viṣṇu reads 'na śleṣmavyādhyarditānām bhīrūṇām ..codakam'.
   *P. 49 (text)

46 VYAVAHĀRAMAYŪKHA
20 (The judge) should prescribe the proper (ordeal). When it is
positively known that a person at one time was guilty of patricide or of some
mortal sin and subsequently (he is charged with another crime) and
it is doubtful (whether he committed it) even in such case the same author
(Kātyāyana) says that an ordeal must be performed by such a person
through a substitute alone.
"In case of those who are guilty of killing their mother father a brā-
hmaṇa a teacher (or elder relative) an old man a woman and a
minor, particulary in the case of those who are guilty of committing one
of the great sins and who are atheists, in the case of those who wear
heretical sect marks, in the case of lascivious women and of those who
are experts in magic spells and yogic practices, in the case of those who
are born of the mixture (or confusion) of castes and those who are
habitual sinners, when these people are charged again with those very
reprehensible crimes the king who is devoted to dharma should take
care not to prescribe an ordeal for them (to be undergone in their own
persons). (The king) should prescribe an ordeal to be undergone by
worthy persons appointed by these very (sinners). Where worthy persons
cannot be found (willing to undergo an ordeal for them) they should be
cleared by their own people (i. e relatives should undergo the ordeal for
them)¹
Svakaiḥ means by their relatives.
Now as to the time (for an ordeal) Pitāmaha says
Caitra Mārgaśiras and Vaiśākha, these are months common (to all
ordeals) and not contrary to them. The balance (ordeal) is declared
to be (proper) for all seasons but it should be avoided when the wind
is blowing. The fire (ordeal) is declared to be proper in the seasons of
śiśira hemanta and varṣā (rain). Water (ordeal) is proper for
śarad (autumn) and grīṣma (summer) and poison in hemanta and
śiśira (i. e. December to March).
The express mention of hemanta and śiśira for the poison ordeal serves
to indicate other seasons also (i. e. it is merely illustrative and not exhaus-
tive) since it will be declared below "In the rainy season the quantity (of
poison to be administered in ordeal) is only four yavas" (Nārada p 116 v
324). Nārada says
Kośa (ordeal) may be offered at any time and the balance also at
all seasons.

1. The verse does not absolutely prohibit the prescribing of an ordeal for these men;
   what is forbidden is that they are not to undergo an ordeal in their own persons, but
   through a substitute appointed by them.
   P. 50 (text).