The Oollection of Hindu Law Texts l)

Vol, II. Part III,

A Vj

Y AJNA V ALKY A, SMRTI --::: -.

WITH THE OOMMENTARIES OF

(1) The MITAKSHARA by Vijiia.nes'va.ra. Bhikshu . . .

(2) The VIRAMITRODAYA by Mitramis'ra. AND

Vyawaharadhyaya.

Chapters IVII ( Pages 631-976 ) All English Translati011 with notes, explanations etc,

BY

J. R. GHARPU~E, B,A.,LL,B.,(Honours-in-Lnw.) Principal Law College, Poona, Advocate High Cowt, Bombay.

Fellow of the University of Bombay.

Second Edition

1938. -:i l (

PREFACE.

As announced last year when the second part of the Achi1rl1dhyaya was published, the first part of the Vyawaharadhyaya is nowheing i,sued. This portion consists of Chapters l- V II which give til. General and Special Rules of Procsdure, the laws of Deht, Pledges, 'and Deposits, and the provisions as to Witne88es, Documents, and Ordeals. It will thus be seen that the portion now issued in this Part, consists of the Procedure Or the Adjective law of the iil orti. The next Part which will consist of Chapters VIlI-XXV contains the Substantive portion of the Sm,ti.

As announced hefore, the translation now issue'! consists of

(1) The Original Sm,ti of yajiiavalkya. (2) The commentary called the IVIitak,hara by Vijiiines'vara. (3) " (4) "

"

"

"

"

Viramitrodaya by IVIitramis'ra and Dipakalika by S'filapal)i.

In the First Edition which was issued in 1914, only the Smrti of yajnavalkya and the Mitak~ha,'a were included in the translation.

The two commentaries of the Viramitrodaya and the Dipakali/,a were subsequently secured from the Library of the India Office. Tho commentary of the Viramitrodaya has also been published in the Choukhamha Sansk,t Series of Benafa3 and the Dipakalikfl. is being pnblished in entirety in this Series. It will be remembered that the translation is being issued in handy volumes of about 400 pages for t.he convenience of subscriber .

The Second Part of the Smftimnktaphalam by Sri VaidyanMha-Dik~hita is also being sent out alongwith this volume.

The next instalment will consist of:

(1) The Englis'. Vyawaharadhyaya of Commentaries.

Translation of the remaining portion of tha the Yajiiavalkya Smrti, with the three

(2) The SansRrt TalCt of the Dipakalika by S'nlapani. The assistance of my son Bal has, as usaal, been of much uee.

Girgaum, Bombay. l5th March 1938 } J. R. GHA.RPURE. Editor.

LIST OF OONTENTS 1."

Chapter I. GENERAL RULES OF PROOEDURE

Subject he King should administer

justice

Page

631 Vyawaharll"'-delined ... 632, 635

" several nape'cts

Subject " Oontents oi, Form of

Particulars Vicious plaints Mixed plens

Page 652, 656

653 654 655

Duty of the king '" "note.

633 No ohange in the plnin t answer is filed ...

nfter the Result of non-investigation

., faulty " Derivation of Vyawabfira Oouncillors and Assessors Their qualifications

It number The OhU Judge Who should be appointed? A perverse decision, effect of

Punishmen t for

...

...

" " 636 637 638 639

640, 642 641 643 644

" Oommencement of a proceeding (Vyawahiirn)

Plnint., kinds of Inadmis.ible plnin ts .. Procedure after the complaint Who may and ,may not

summoned or arrested Agent. Plaint reduced to writing

645, 649 646

be

650 647

648, 658 649, 657

651

Right to begin Answer-Essentials of

Kind. of " Denials, Kinds of

Faults in an answer " explained

Mixed plen. Order in H

illustrated "

659 660, 696

661 " 670, 075

6'1 662 663

661,671 665 666 667 66S

Simultaneous proof not allowed "_ Prooedure in an answer A Bmn-WadI Exhibition of evidence Burden of Proof Kinds of evidence The Result Four Ports of Vyawahiira

Prat,y~kalita P.da

669, 694, 695 672

'"

673 674 676 677 678

Chapter II. SPEOIAL RULES OF PROOEDURE.

Subject Page I Oounteraolaim, when allowed No change in pleadings

result of shifte

679 False plea. : Subject

penalty for Page

687

" Limitotiou of this rule

680, 701 6S1 681

Counter-charge when permissible 683, 684 Security to be taken ... 685 Object of the SeQuritiY 686

" Fine" 688 When defence to be immediate 6~9, 690 Disqualifying callses for a witness. 691 Unfit person.-characteri.tic. of... 692

" Bigns of Priority as to witnesee~

693 696, 697

Subject Suit with a wager Unequal or one-aided wagsr Oareful investigation necceasnry Quantum of proof in a denial Effect of a partial denial

" of its disproof ... In suit, for father', debt, In criminal complnints In uase of a general denial Conflict....:-between Smrtis

11 Rules of La.w and Politics. The Atatayin' Rule on a conflict Kinds of evidence Mode of Proof The maxim of part for the who Ie

Page 698 699 700

-702 703

" 704 705 706 707 708 711 712 713 714

( ~fi[mf

vii

Subject . Page What debts should be paid 784

, '" " need not be paid .0. 785 " "the Ron need not pay 786, 787

Mother's debts" 788 When'is 8 hueband liable 789

" should a wife pay 790 Acknowledged and enjoined debte. 791 Liability of Bons and grnndsons ... 792 Extent of" 793,794798,802 ABBets and liability... 796 Women ... 798 Swairini, and Punarbhus 799, 803 TransBctions prohibited between

certain relations... 805 Representation 806

" by wife ... 807 THE LAW OF SURETYSHIP.

.8urety-,defioed " Kinds of

Liability of sons Extent of Joint ,and several

808,817 .0." 809

810 811 812

Subject Page The Jiiteshti maxim ... 813 When payable... 814 Persons prohibiteil:.l,1B Bureties 816 For female, and beasts . 818

THE LAW OF PLEDGES.

Kinds of ... Lapse of a pledge Time for redemption .. . Pledge with custody .. . Exception .". Pledge with a Time limit

" for UBe " proof of " if destroyed ."

Ohatrita pledge Satyankii.ra H Redemption of a pledge When the debtor or creditor

available Usufructua.ry pledge ... Divisions of Self-effacing pledges ...

819 820,826

.. 821 822,824

.... 823 823 8"25 827 828 829

. a30 B30, 833

not

.;.

832 814 836

. 836

Chapter IV. LAW OF DEPOSITS.

Subject Upanidhi and Ni!t~h,pa ... '~Rnle in Cass of 1088 .0.

". . by' superior forco E;xcept,ion .,. ,

Poge 837, 8!2

838

" 830

Subject Wrongful appropriation of YBchitalut, lVy9aa, &c. Anvlihitu .

. Page 840

841,844 843

Chapter V .. WITNESSES,

Subjeot Page Oharacteristios of 848 Kinds of . :' - H Appointed and unppointed ..... 846

. Qulllmcatlons of . ... 847 . Petson. unfit to be 848,851,.854,857

" Described 840; 856 A single witness 852, 865, B58, In serious charges 853, 859 Kind. of affirmation 860, 863 Form of Oath 861 Oath by touch 864

Refusa~ to give evidence, ,penalty for... '865, 866

Penalty for .Hence ... 867 When_ witnesses differ ~68 ( 870'

Subject ." Page Place where-to be exaiiiined" 869 Probative foroe .onestimo"y '871, 872 When more""- q~alified - ~tnesae~ .

appear -",,'J 874 What evidence is.conclusive __ ,;.. ,,,B75 Evidence nfter decision 876, 877 Burden in .imultaniety of claims. 878 Punishment for :false evidence ... 880

11 n habituai offenders. 8'82 Special punishment .. ; , 881 For a Brahmana ,-.B83 For withholdin'g evidence... . .384 When an untruth -is per~ssib-ls .887

E"pi~tion for - -. ... 888

viii

Chapter VI. DOOUMENTS.

Subject Kinds of ..

" "

described ... Form of "

Page Subject 891 Rule whell original lost &e.

,! Secondary evinenoe ... M92, 897 Jayapatra

893

Page 901, 904

902 Debtor's endorsement Attestation by witnesses Endorsement by the writer General rules regllrding Invalid Documents Extent of liability under Speoial rule for a pledge

894 How document to be proved ~95 Oircllmstantilll inferenuo 80u Endorsement of pa.yment 89H )1 of witness 899 Document to be torn upon pay-900 ment

Chapter VII. ORDEALS.

903 905 906 907 909

908

Subject Page Subject Page Kinds of ordeals 909 In serious casas 911, 914 In petty cases 912 By agreement 913 The oath, Koala &c. 915, 916 Preparation for an ordeal 918 The preparation of nine circles,

Tbo ordeol by Fire ... 944 The procedure by the per.former , .. 948, 99

" " "Ohief Judge 947 In vocation Man tra ...

"

Optional rule by PitamEiho. DIg their dimension, intervening Different ordeals for difforent spaces &0. . .. 949,50

seasons g~O, 921 Procedure in cases of doubt 951 The genernl prucedule .. 922 Retrial, whfm, prescribed 95S In cnSGS of women, children, Ordeal of Wa ter 955

old men &e. 923, 924 The Procedure described 960, 961 Rules for the performer 925 Sea!ons for it 967 Special ordeals U26 R{>sult U5U Pecuniary limits for se'lvera.l Procodure if the performer

ordeals 927,930,932 vi,ible n5D, D61 Ordeals graded to losses 928 Ordeal by Poison D62, D66 In charges of treason, SiihnsB.s &c. 929 The Mantra for it ., " The ordeal 01 Balance des- The effects of the poison D63, 966

cribed 933,941, 942 Poisons to be selected 963 -The invocation Mnntra 934 11 nvoided 964 Oonstruction of the Balance 935 Senson for the ord~al ... 964 Inauguration of the de.ities 936, 937 11'0 whom it sbould not be given... 965 The mantra by tbe Ohlef Judge D3B The reBnlt 965 The test ... 939 Ordeol by Kos'a 967,970,971 The result 940 The Procedure 967,968 The Balance house 941 The test and tbe result 969

OTHER ORDEALS. Subject Page Subject Page

The ordeal by Rice .. , 971 Pitiimahn's rule 973

" The heated ma~ha. Another courSe 974

Its preparation 972 The oaths 974 .... Their vnlieties 775 Another co~rBe 973 Tbe application of these 975 'rho ordeal-of tho Dharma and Determination of the rosult 976

Adharma 97S, 974 Time limit 976

S'RI Y AJNAVALKY A-SMBTI TOGETHER WITH THE COMMENTARY CALLED

A A A

MIT AKSHARA OF

- ~ A S/RI VIJNANES'WARA AND THE OOMMENTARIES

OF VIRAMITRODAYA BY MITRAMIS'RA

AND DIP AKALlKA BY srfru.P ANI

SECOND BOOK

ON VYAWAHARA: POSITIVE LAW. Chapter I.

OF TIlE RULES OF PROCEDURE IN GENERAL. Introductory.

Of a king possessing the (necessary) qualifications of anoint ment &c. the protection of the subjects is the highest duty; that, (i. e. the protection) however, is uot possible without punishing the guilty. The detectiou of the guilty, moreover, is not possible without the administration of justice (Lit. holding a trial). That Buits should be 5 tried daily has already been said' viz. that" a king should attend persopa\ly to the administration of justice every day, B)lrrollnded by (or with the help of) the Coupcillors." ThevBrious detail!! oEa trialviz. its pature, its kinds, apd its procedure have, however, not been descri bed, and the .Becond .Book is being commenced for describilJg these. 10

Yajiiavalkya, Ver~e l. The king, divested of anger and avarice,

632 [ Yaj ilavallcya Ver861. Mitak~ha.ra :-Vya.wa.Mran, &c. judicial trials 15 IV. Its compon,nt par": Nlirada-(I, 8 .. 9) ;; "Iil'QI'"il::'~I'l"'il:"I'I'f '[9" I "I1!1if'f~i!"fIql '~,f'f'i'r 'It 'l;"1'f"'f,r''lfrr;jn' 'l'l'lt I 'fIP~'iT m~""'1 if'!

,

I' .. . ~' " ~ ~ Ii t !

Ydjnava.llaya ] Verse'1.

'Vymvahflra . ddined.

-:- Mltllkshnril.--Xbig's ,duty.

person says that the land' &c.is his, and nny other also says in contradiction to him,that .it:is his . The Author indicates its i. e. of the. Vyawahflra:-

variety by the (use of. the) plura:I.Bythe-wo~d n~pa, i. e. king, the Author indicates that this is not the duty oE the lc:;hatriya order alone, bnt also of auy other endowed .wlththe iluth6i'ity to govern the subjects. Pas'yilt-should administer, &c. is a repetition (by way or corrobora-tion) of what was said beEore and is intended as laying down a special dnty. Vidwadbhlp., along with the. learned,-with ( the

63.3

5

Bra~manlt~. help oE) those (who are) well-versed iu works on 10 legal science and the Vedas, grammar &c. Brapmanai\l, with Brtl(tmat.as,-not Khatriyas

or others. By the expression, 'Brltp.maJ;las' introduced by the lnstrn- . mental case, their subordination is indicated, from the grammatical aphorism! 'conj uncti ve use with Saha (the preposition with) indicates subordination.'

Hence, in the case or absence oE an investigation, or Eor a falBe decision, the Eault wonld be that oE the king, and not oE the Bra~maJ;laB. As observes Manu:'-" A king, punishing the inuocent ( Lit . unpn-nishable), and not pnnishing tbe guilty (Lit. deserving punishment), brings great infamy on him-elE and gnes to bell". - Fly what procedure (sbollid he try snits)? ~ dharmas'astrii,nusarelJa, in conformity

withDharm~ 8'{),stra' (Science oE religion and law) and not with the science DE politico. Tlle e.stablished usage anillaw DE the country &c. have not been separately mentioned, as tbey form a part DE the subject matter oE legal science, in so Ear as tbey (snch llsage and law) are not inconsistent with tile general principles oE legal science. And as the

15-

! -

20

25

sage Yajfiavalkya has said4 'later on, "a custom which ,is not opposed to law should be careftilly maintained, as also the law or nsage made or established by tbeking". KrOdha-lobha-vivar- 30 jita\l, &c., divested of anger and ava, ice &c.. When it is establisbed that it (t. e. the administration oE justice) shonld be in

L rU9ini. II,-3-19. (~if!f.i;sq~i'r I) 2. Oh. VIII. 128. 3. For the extent and. scope 01, the expression Dharma-SJ astra. 'see tge

Ge.nera! Note on the Hindu Law ~."t~.

634 Virtlmilrodaya-TWllll at Law, [ Y4ifla'vaZkya Verse 1.

5

conformity with the principles of legal science, the mention of the' additional condition (that the king shonld be) "divested of anger and avarice" is indicative of a special injunction (3'fT'fUiill;) 1 Kr6dha anger-intoleranoe. L6bha avarice--excess of greed. (1).

Viramitrodaya. "The judioial proceedings, he himself should investigate,

surrounded by the councillors, every day", what has been thus stated' in the last Book, the Author now elaborates in detail by a separate Book.

Yajiiavalkya, Verse, 1. 10 Here, althongh the investigation of a judicial' trial has been

stated in the last Book, still a .iudicial trial with .11 its parts being sot out in this Book only, it is oalled the Book on Vyawabura. There, moreover, these are the Chapters: viz.

I. Ohapter on the Rules of XIII. Breach of Oontract of 16 Judicial Preeedure. Verses service. 182-184

20

1-36. II. Payment of Debts-Verses XIV. Breach: of Cont.ract.

37-64. 185-192. III. Deposits. Vsrses 65-67.

IV. Witnesses. Verses 68-83.

V. Documents. 84-94,

XV. Non-payment of Wages. 193-198.

XVI. Gambling and Betting. 199-203.

XVII. Slander and Abuse. 204-211.

25 VI. Ordeals. 95-113. XVIII. Assault, 212-229. VII. Partition of DiLya. XIX. Sn,hasas. 230-263.

Verses. 114-149. VIII. Boundary Disputes 150-158. XX. Non-delivery after Sale.

204-268. 30 IX. Disputee between the own- XXL Partnership. 259-265.

erB and keepers (of cattle) Versee 159-l87

X. Sale without ownership. XXII. Theft. 286-282. VerBes.168-174.

35 XI. Non-completion of gifts. XXIII. Protection of Women. Verees 175-176. 28'3-294

XII. Rescieeion or a S"le.177-181 XXIV. 1iiscellaneous.295--3U7

1. The meaning is that the king is asked by the geueralln,v that he should adminbter justice according to religion and law, but in part~culflr he is Bsked to cast off all anger and avarice.

2. See verae 860 Acbl1radyaya P. 620 above. 3. Vi,varupa makes it further clear: '%i'rslll E1f'f~ln'f '9illfiil~~iq:;J'fl 9~'f'l'!'" I 'l'ill;;;r,x: ''i!QIQl

yt1;naoalkya ] VerseB 1.

Vlramitrodnyn-Vyawaho.ra. 635

Vidwadbhi, 'along with the learned', i.e., men well conversant with the principles of legal science ; bral)mr:q,ai~, 'with the BrAJ:1mal)as'; saha, 'along with'; nrpa~,' the kiog'; from anger and avarice being porticulorly averse; Dnarmasctstranuslire!,a, , in conformity with i.e., with ant detriment, to Dllarma- and s'astra, "Dressed in deCAnt 5 attire, the king after going to the court houBe, with cloBe attention, being seated with face t.owards the East, should investigate the CBBeS of' suitors" in this' and the like manner, suits containing the plaint and the answer, pa-s'yet, 'should administer', i.e., should investigate.

By the word nrpa' iB included one even other than a K~hatriya, 10 who is a protector of subjects. Bra~m~1}a-i~ is the principal course. If that is not possible, then along with K~l,~triyas or Va-ieyas also, aB has been stated before.' The particnlar mention of Dharmdastra-is with a view to point out its chief importance; for in the investigation, the science of polity may also have to be followed. That has been stated 15 by Kat yay ana' : "By those experts ill the Dha-rmasastm and versed in Artllasastra ". On a conflict between the Dl,armasastm and the Art;'a-. sastra, however, the greater or less potentiality will be stated later on.

As to the etymology of Vyawalta"a, Katyayan9.' says:, "Vi, has the seuse of many; ava, means doubt, hara!'

5ulnp~ni-l)erivatian' qf Vyawo.hrira [

Ya;flavan~yfL VIlrs6 2.

peMlty to the successful party or to the king' in this or a similar form where a condition or wager like t.his is l"id before the writing down of the Plaint, that is' a suit with a wager '; one other thau this is ' a suit without a wager ".

5 It has been stated: 'in accordance with the Dl,arma S'dstret '; there, the Author mentioos the position of the Dl,arma S'listra, ;,8., by reference to the entire treatise. Thue indeed becomes congruous t.he meution here.'ter of the witne"ses, disputants, &c., since these are incorporated into the Dharma S'113tm. (1).

10 S'ulapii\li In regard to the Recovery of Debts and several other titles at

Law such doubts as arise are 1'emoved by this, and therefore, this deliberation which removes doubts as to the several points is called. Vya'vohdra or a Judicial proceeding. So Ktity':yaua: 1-' Vi, has the sense of many;

15 ava, means doubt; harat7.a 01' removal is expressed by haru; by reason of the removal of several doubts, it is known as VyavaluJ:ra." Tan, these judicial proceedings, the Lord of tbe land, should himself personally investigate, and in company with the Brahma>;!as knowing the Dharma-sas{ra. In accordance with the rules of the Dhannasas{m regarding the

20 Plaint, the Answer, the Proof, the Trial and the Dacision, and not tbrough anger, or hatred, nor through avarice, nor by partiality. Although it has been said that the kiog should himself investigate' judicial proceedings, still this is a subsidiary' condition of the principal point viz, investi-gation according to the principles of Dharma Saslm. (1)

25 Yajiiava,lkya, Verse 2. A king should select as his Councillors' those persons

who have become accomplished by learning and. stud.y', who know the law, who speak the truth, and who are the same' to friends and foes a.like. (2).

1. VerBe 26. 2. Verse 360. Rrr~e:.-The use of this expression has the sense of

investigation ca'J'1'iod to 11 decision. 3. qB~P~On~ 'gUT~I;IT'11~'r39!tF-!];1l1 and a:{2''''Iq-The principal of the

chief point is flUf, !lud the subsidiary or subordiun.te one is 3=!'~9'~' 4. The wa rdil Colt/willa,., and AS80UO,.O ILre separately used here to bring

out the distinction between r;rll:'fi (appointed) and 3lf.l"!!'fi (unappointed). The word m-q st.anus for those who aTe appoiJ~t(Jd. and has been trnnslated fiB Coullcillol','. The word AS.~o8SQrd refers to tuoes learned Br6.l~.maI':lnS who voluntari1y go to a court and are referred to in verse I1 above. Of. the J'udoa;, and th~ Rccuporatofos of lhe Roman system.

5. i.,.oftheVed;s. 6. Impartial to. friends and foes as well.

'Mltrl.kshnru.-Tho o1Jpointed-atld tho'lmappoinled. 637

Mita.k~hara..- Further, S'rutenEL, by learning, by study-ing the Mlmttfi.sd (the science of Interpretation),

Page 2. Grammar etc ; and also adhyayanena, by study, i. e tbe study of the V edits .. ; sampELnna~, accom-

plished; dharmajfi.ya~, knowin.q the rel~qion, i. e. those who 5 know religion and [be science of law; satyawadinap., who spealc the trt!lh, i. e. who have (eltablished) a character for speaking the truth.

Ripau mitre chEL ye sama~, same to friends Sabhyas (Coun-and foes alike, unaffected by feelings of hatred,

ciliors) described. love &c. Men of this description should be invested 10 as councillors by the king, after conferring npon

them gifts, and other tokens indicative-'of respect, that they may \lJecome fit to) attend or sit in tbe meeting or 8ssembly, saUhtlsada(!.

Although the expression 'accomplished by learning and study' has been used without particularisation, etill Brltl;lmaJtas only (are meant). l5. As says Ka.tyayana' :-"Moreover, he (i. e. tbe king), accompanied by assessors or councillors, who are steady, special scholars, of high .pareutage, and who are the best of Bril;lmll.lls, who are clever in inter-preting the meaning of Dharma S"dstra, and who are accomplished ,in politics." 20

. Those to be selected, moreover, should be three, the plural baviug been used with a (special) purpose; and also tbere being a text of Manu' viz:-"In the place where three Brltl;lmaJtas, versed in the Vedlts, sit down." Brhaspati', however, intimating that the councillors should be seven, five,or three, observes: "Where, Viprtls 25 (Bril;lmaJtRs) knowing the usage oftbe people and tbe Vedas, as well as the law, and being either seven, five, or even three, are Bitting, that assembly is equal (iu Sanctity) to a sacrificial ussembly". It should not, moreover, be supposed that (the words) "accomplished by learning and study" arid others, are adjectival of Bral;lmaJtRs referred to in the 30 last verse in (the expression) "along with Bra~mal)as," it being.imposi-Bible that words having the" Nominative .and the Instrumental termi-nation at their end, should be connected as an adjective and the word qualified (by it), as alsoon account of the possibility of the fault of repetition being committed bytbeuse of the expression "by the learned". 35

1. Verse 57. 2.0b. VIII, 11. ;J. Ob.1. VerBe 11.

638 MItil.kshorfL-QltcolifiGatjofls of Ouullcillvrli, [ J'a;ii:avaaZkya l' ar8B 2.

Moreover, Ka,tya,yana,' has brougbt out clearly the distiuction between the BrilhwWls and the Conncillors thus :-"A king attains heaven, who investigates disputes according to law, with the help of the Chief J adge, the minister, the religious preceptor, the Br:1hwa~las,

5 and the CoaD.cillors." There, the distioction is that the Br:1~malfaS are not appointed, while the Councillors are appointed. Hence also it is said' "whether appointed or not appointed, he who knows the law is entitled to speak".

Among these, those who are appointed should advice the 10 king on the facts as they staud, and if he woald act otherwise,

then they should dissuade him, otherwise they would be guilty. Ka,tya,ya,na,' has also said :-"The coancillors who follow him, even when he acts with injustice, are co-sharers with him in it (the injustice); therefore the king should be warned (advised) by them." DE the

15 unappointed, however, the sin occurs only when they speak a false-hood, or do not speak at all; not when they do not dissuade the king. As l'IIa,nu' has said :-" Either the court must not be entered, or the truth mast be spoken; a man who either spelh nothing, or speaks falsely becomes sinfal (guilty)." Ripa,u Mitre Cheti, to friends and

20 foes, ere., in this clause by the (use of the) word eha is indicated that the coort should also have the attendance of a few merchants for the satisaction of the people. As says Ka,tya,yana,' : "Attended by a few tradesmeu of good family, free from malice, and possessing the qualification of high birth, character, age, good behaviour

25 affluence, and family tradition." (2).

30

Viramitrodaya. There, moreover first, in regard to the statement" along with

learne" Brahmans," while explaining the learning, the Author discusBe s the Brln:J.[na~." .

Yajiiavalkya, Verse 2. S'l'uiam, 'learning', i.e., wit.h the help of the Mima])ea aud the

like, underet.anding the meaning; accompanied hy that, with the study of the Veda and S'aBtTa , accomplished, i.e., posses Bed. Therefore also dilarmajna.h, ' who knnw the lltw " i.8., who are clever in discriminating

35 the dilarli,a an! the nou-dharma; and therefore alBa who have a character for truth-speaking. Ye ripau mitre eha 8ama~. ' who are the Bame to foes and friends alike' devoid of' hatred, Bngerl et.c., those 1. VersB 56, 88e note 4 on p. 636 2. By Narnda. III, 11. ~~. VersB 75. 4. Oh. VIII. 13. G. Verse 68.

Ydiilavallc yu] Ver8es 2.

Vlramltrodayn-Councillors, their qualifications and 1lUmber. 639

Bri1:i).maJ;las should by the king be made councillors, i.e., who will attend the courts. The meaning is that honour and respect, etc., shonld be so ordained for them tt.t they may attend the court for the deliberations. By the nss of word cha, ' and', are included the indifferent.

,

By the use of the pluml number, the Author intends the particular number stated in other Srortis. So, moreover, lYlann', "In the place where sit down three Brfi:i).roaJ;las knOWing the Vedas." Brhaspati' also, "seven, five, or three may be the Oouncillors." Really, however, the inclusion of the unappointed Br1l:i).maJ;las having been stated before, even apart froro tboBe, this verse is intended to direct others to be milde 10 councillors. Hence it is tbat the Ohief Justice, and the ministers, together with the Brll:i).maJ;las and the Purohits have been stated by Katyayarra'. After premising the investiture, it has been stated: "Attended by a few merchants of good family, possessing the qnalifications of high birth, character, age, good behaviour and afllllence, ond free from malice." By Mann' also has been eaid: -" In transactions between tradesmen and artisa.ns, and also among persons subsisting on agrhmlture, or on the sta.ge, where a decision is impossible to be reached, it shonld be got done by

5.

15

the experts in the lines themselves." This is only indicative. The point is that whoever is a specialist in a particular matter, by him 20 indeed that matter should be got decided.

Brhaspati' mentions persons necessBrY for (0. court of) justice, "The king should appoint two persons-an accountant, and a scribe-wbo know the principles of the science of words and names, bave studied the lexicons, who are skilful acconntants, who are pure, and who are 25 acquainted with the various alphabets. For summoning and gnarding the witnesses, tbe plaintiff, and the defendant, a truthful and confidentiol mon should be appointed, subjeot to the authority of the Oouncillors'." (2)

S'ulapalli The Author mentious the councillors

Yajiiavalkya, Verse 2. Accomplisbed with the kuowledge and the meaning of the Vedas, and

the study of the Vedas; who know the Dharma siisi1-a; and who by habit

1. Oh. VIII. 11. 2. Oh.1. Veroe11. 3. VerBe 58. 4. This verse is not found in Manu j Bee however B;-haspati 1. 26.

See Ragh,mathji Tarachand VB. Bank oj Bombay 1. L., R. 34 Bom. 72, at p. 78. 5. Oh. 1. VerBes 14, 15. 6. ''''-'lr>!r'!:

2

30

640 Mlti1kshnrfl.-The Ohicf Judge. [ Y djiJava lkyd

Verse 3.

are truth-speakers; those who are of an even mind towards an enemy as also to a friend; such should be appointed councillors.

Katyayana1 states a special rule: II He, moreover, aceompanied hy councillors, who are steady, special scholars, of high parentage, and

5 who are the best of Bra1,1maJ;las, who arB experts in the Dha1'ma Sctstra J and are accomplished ill the science of polity; along with the chief judge, the minister, the religious preceptor, the BraJ.>mallas, and the councillors, the king who investigates disputes, attains heaven, and retains it according to Dharma." (2) .

10 It has been laid down that 'the king should administer .justice'; the Author mentions a secondary conrse

Yajiia valkya, Verse 3. Unable to attend to the administration of justice on

account of other engagements, by a king should be a ppoil1ted 15 (in his place) to work along with the Councillors, a

Erap.mal)a, knowing all laws. Mitak~hara :-Ou acconnt of his bein~ engrossed in other

works, vyawaharan apa,s'yata, unable to attend to the administra~ lion oj Justice; nrpel).a, by a king; sabhyailt saha, along with

20 the Councillors, referred to above, sarvadharma vit, knowing all laws, all laws i. e. laws laid down iu the S'astras, as also the customary laws; knows i. e. (considers) discriminates; such a one is he who knows alllawB ; Era.ltmal).a,a Brd/m1a1.1a, and not a k"hatriya or any other; niyoktawyalt, should be appointed, for deciding disputes.

25 Moreover, Buch a one possessing the particular qualities laid down by Katyayana2 should be made. Says he :--'''He should be self-restrained', high-born, impartial, not overawing, calm, god-fearing, religious, and devoid of anger,"

1. Verses 57, 58. 2. See Verst) 04. 3. qprf. The other reading is ~;R vigilant.

Y4;nafJalkya J Vers6 3.

64J '-: ..

In the absence of a Brd~ma1.1a of this description, . he shonld. appoint a Khatriya, or a Y sis' ya, hut nota

Page 3. S'Udra. As says Katy1j,yana1:-" Where a. BrlL~maJ;la is not available, he (i. e . . the king)

should appoint a K~hBtriya, or a Vais'ya who knows the Dharma '5 S'dst1'a; a Sildra should be avoided by all means,"

By Narada2 also this very thing has heen. indicated pro-minently :-"Placing before him Dha1'ma-S'dstra, ancl. adhering tQ the opinion of the ChiefJ udge, with a calm mind (or concentrated attention), he should decide suits in due order." 'Adhering to the opinion of the Chief Judge, i., e, not posting himselE in his own optmon. As in the expression, 'the king ohserves the enelllies' army .. with the eyes {ia the form} of spies', the term Chief Judge is here' used in its etymological' eense. He who questions the plaintiff and

10

the defendant is a prat; and he who Bifts or discriminates their' 15 statements, the inconsistent from the consistent along with the assessors, a vivitka; he who 'is a prd! as well as a vivdka is a Prlldvivl1ka. Moreover, it has heen said:3 "He is called Pradvivaka, because, after. consulting him, the king, in' company . with the councillors, decides dispates after an inquiry relevant to the. matter 20 at issue." (3)

. Viramitrodaya. " Judicial proceedings he should himself personally investigate"

thus it has been stated in the last book. When, however, that is not possible, the Author mentions a course '. 25

Yajiiavalkya, Verses 3. Owing to beiog absorbed 'in concentrating himself upon other

mattersa.nd therefore unable to investigate judicial prooeedings, by sucli .. king, along with the councillors, " Br&hmana. knowing all laws. and rules useful for a lawsuit should be a'ppoi~ted for' the porpose ()f 3D investigating law suit,. This is the meaning. Here Katyayana4 states a

i. Verse 67. 2. Oh. 1. 35. 3. By Vy.sa. See Sm~U Ohalldrikil, P. 17,~. 3, 4, Verse 64.

--~

VJrnmitrodayst 5' ulspuni-Thc Chief Judga, [

Ydjiiavalkya VerSli S.

special rule. "One who is self-controlled, well-born, impartial, not likely to create distrust, who is firm, .fraid of the next world, devoted to religion, industrious, .nd devoid of anger." In the absence of such. Bl!I"i).ma"a, a. K~hatriy., or a Yais'ya should he appointed, so has been stated above.

5 So sa.ys Narada1: "The affllirs of' the ascetics should be got determined by only those who are learned in the three lores, as also of those who are versed in sorcery and witch-crafG; and not himself, for fear of creatin;; resentment." The msaning is th.t those from who3e anger there may Dcanr danger, the investigation of ( the

10 dispntes of) these should he caused to he made through men of their kind alone.

Even when a determination is m.de by himself, the co-operation of the Ohief Jlldge is certainly contemplated. So observes Narada': "Placing before him the Dllarma-S'ilstra, and addheriog to the opiuion

15 of the Ohief Judge, he shollld decide suits in due order, with. calm, i.e., concentrated mind." (3).

20

S'iilapal1i . Wben the investigation of disputes is not possible to be made by

himself personally, the Author states a course

Yajfiavalkya, Verse 3. One knowing well alllawe i. e. of the country, the caste, and the

rest. In the absence of a proper Bral;tmalfa, a Kshatriya, 01' a Vaisya may evon be appointed, as says Kiityiiyana':" If a learned Bl'al;tmalfa be not available, one may appoint there a Kehatriya, 01' a Vaisya who

25 knows the Dharma sastra; a sudra, one should avoid with effort." So also Manu': "A Bral;tmalf" who subsists only by the name of his caste (jate), or one who merely calls himself a Brahmana, may interpret the law of the king, but never a S'ndra. Of that king the adminis-tration of whose laws is made by a S'udra, the kingdom will sink

30 (low) like a cow in the mud." (3)

1. Not found in Niiradn, but See B,bnspnti, 1. 27.

2. Oh.1. 35. 3. Verse 67. 4. Oh, YIII,20-21.

Y4inavaZTtya ] Verse 4.

Mltllkshnru.-A per-verse decision. 643

The Ohief J ndge Rnd the other councillors if out of passion &c. decide B dispute in departure from the dictates of the Sm,tis, then what should a king do? so the Anthor says

Yajnavalkya, Verse 4 4. Out of passion, avarice, or even through fear, 5

councillors acting in departure from the rules of the Smrtis or from a similar cause, should each be separately punished with a fine double of that ill dispute.

lI'litak~hara :-Moreover, the aforesaid Sabhya!l, councillors, on acconnt of the uncontrolled sway of Rajas' or passion, being 10 affected by it, rag at, out of passion, i.e., on account of excessive attach-ment; lobhat,jrom avarice, i.e., on Rccouutof excess in greed; bhayat, from fear, or on account of excessive tribulation, smrtyapetam. in departure from the Sm~tis i.e. opposed to the Sm~tis. The term Adi or from a simliar cause. indicates doing something which is a 15 deviation from custom; prthak prthak, sevemlly, each one severally. Vivadat, oj that in dispute, of the amount accruing as damages on account of a defeat in the suit; Should be punished with II double of the fine, dwigulJam damam; not however (double) of the amount which is the subject matter of dispute. If it were so, there would 20 be the possibility of an absence of fine in disputes regarding adultery or seduction and the like. The use of the words passion, avarice and fear is to limit the double fine to ( the CBses oE) passion &c. only, and not to (extend it to the CBse of) ignorance, mistake &c.

Moreover, let it not be supposed in consequence of the 25 text of Gautama2 viz. ,. a king has power

'" [ P. 3. L. 16.] over all, excepting Brahm"nas," that Brd~ma1.ws, are exempt from punishment, as the text is

intended to be eulogistic only. As to what bas been saids viz., 'that he (i.e, a Brl'l~ma1!a, 30

should be exempted by the king from six (punishments), viz. that he should not be killed. imprisoned, punished, exiled, deported or

1. The second of the three qualities vi" Sotva, Rajds and Tamas. 2. GautamB 11, 1. a. Gautama VIII. 12, 13.

.644 Virnmitrodnya-PulIishme1lt for the /lamc, [ ya.inaval1~ya Verlle 4" made destitate (deprived of his effects),' that holds in the case of one I " who is a well-read scholar, . one who knows the nsages of the people, who is versed il'l the Vedas and the Ved.ngas, who is an expert in the art of controversy (or in expounding controversial

.5 points), in History and tbe Paral,as, who is a constant student of the same, and who follows them in life, who is purified b.y the forty eight purificatory ceremonies,' who devoutly observes the three duties" or one-who has been trained in tbe six' cllstomary duties of life." Thus it (i.e. the exemption) applies only to one who has acquired a

10 versatility oE knowledge as detailed above and not to any Brft~m[tlfa merely as such. (4)

15

Viramitrodaya; For the Councillors giving an unjust decision, punishment should

lie administered by the King; so the Author says

Yiijilavalkya, Verse 4. On account of being oppressed by passion, etc., in departure 'from

the S"'r#8, i.8., opposed to the Smrtis-by the use of the word adi, etc., 'opposed t,o the usage of the country' &c. also should be included. Sabhya~. 'Oouncillors " for the . purpose of investigation appointed to the

20 assembly, as far as the Ohief Judge, prtl,al'prthak, 'separately' each one, .i.udat, 'of thot in dispute, consequent upon a defeot in the dispute under consideratioo, from the penalty in the form of an imposition of a money fine, dwig,,~!am damam, , double the penalty', da~!Cf.yalJ., 'should be punished', i,e., should be made to pay.

By the nse of the word api, 'or also', are included those not known. So says Katyiiyanal : "After correctly comprehending the result of the suit, the Oouncillor should then speak; otherwise one must not Bpeak; he who speaks gets twice the penalty. By reaSOD of the

1. Gautarna VIII. 4-11.

2. vi,. Gautnrna details these at Oh. VIII. 14-22. 3. These are: study, sacrifice, and almsgiving (a:r'Ctr~rqTr::rrfir). 4. These are: the three last with tho addition of 3lWT'f'l!l'["i'l.mr!Til'l:

Teaching, officiating at a sacrifice, Ilnd receiving gifts. See YajnavaZkllu 1. 118. 5. VerBe 8081,

y{jinavalicy~ ] Verae 5.

fiilllt of the Oouncillor, whatever iB IOBt, Bhould be replaoed by the Oounoillor as it was before; a dispute, however, when Bettled by 'the disputantB themsel ves, .one should not investigate."

Thus what bas been deoided after a proper deliberation may be considered again, and no penally (should be iI!lposed) ont of irritation 5 due to the defeat of the plaintiff.

There, "Oouncillors declaring an' unjust deoision, and similarly those who subsist on bribes, a8 also, those who are guilty of a Breach o'f Trust, all these must certainly be baniehed''', the (rule of) punishment thus declared hy Brhaspati should be observed,. (4). 10

S'ulpapi Yajiiyavalkya, Verse 4.

These, the councillors declaring falsely, should each be punished with the penalty double that for the cjefeatedparty., By the use of the wordapi 'even' is included one digressing away from the judicial 15 proceeding (4).

The Author meutions the nat~re of a fTyawahara Yajfiavalkya, Verse 5. . .

, If.one injured. by others in a 'Nay whichis a violation of the (laws of) Smrtis and. usage,. informs the king, that '20 becomes a (fit) subject for a Jud.iciaLProceeding. (5)

Mitak~hara :-Marglh],a, in a way, oppo5ed to legal science aud general usage, paraijl, by others,

Subject Matter adharshitap, injured, i.e .. attacked; w~hich, rajii.~, of a suit. to the king, or to the Ohief,Judge, avedayatl, 25

infm'ms, i.e. respectfully complains, Chet, in case, 'of that, tad, which forms the complaint, is the subject' mattel' of a iudicial pl'aceeding, Vyawaha.rapadam. Vyawahara,or ajudicial proceeding is that which has for its component parts, the plaint, the answer, the doubt, reasons, deductions, the evidence, the decision '30 and the reasons thereof; its pada, its (i. e. of Vyawahara) subject. This is its general definition.

That(Vyawahdra) morever, is twofold: a plaint founded on . suspicion, and a plaint founded on facts. Assays Na.rada' :-" A

L I. 27.

646 l\ljtak~harl'-1Jlaillt8, IC;1i(l~ 0/.

plaint is known to be of two kinds; a plaint founded on suspicion, and a plaint founded on facts j (on) suspicion in consequence of (defendant's keeping) bad compauy; (on) facts, when the stolen goods have come to light". By Bodhct is meant, the goods stolen or any

5 otber evidence (thereof). By "goods coming to light ", therefore is meant, tracing (the offence) by circumstantial or direct proof. A plaint founded on facts is moreover two-fold; (1) Containing tbe statement of a denial; and (2) containing tbe statement of an active wrong (by the defendant). As e. g. "Having taken gold &c.

10 from me, he (the defendant) does not give it hack.", "He (the defendant) deprives me of my land &c." Katyliyana' also has said :-"who does not himself wish to do what is just, or does an unjust act."

This (Vyawahdra) moreover is divisible into 18 kind~. As 15 says Manu':-"Of these (1) the first is the Re-

* Page 4. covery of dehts; (2) Deposit, (3) Sale without ownership, (4) Ooncerns of several partners

together, (:i) and Resnmption of gifts. (6) Non-payment of wages, (7) Breach of contract, (8) Rescissiou of sale and purchase, (9) Disputes

20 between the owner (of cattle) ani! his servants; (10) the law of Boundry-disputes, (11) Assault, (12) and Slander; (13) Theft, (14) Heinous offences. (15) Adultery or seduction; (16) Duties of husband and wife; (17) Partition; (18) and Gambling and betting. These are in this world the eighteen topics of J adicial Proceedings.

25 Even these have become multiplied into many more by the varieties of tas points at issue. As says Narada' :-"Their branches amount to one hundred and eight. It (a jndicial proceeding) is said to have a hundred hranches On account of the multifariousness of human transactions.' ,

30 The author points out that hy the expression 'if he informs the king' is meant, he himself voluntarily goes and informs, and not under instigation of the king or his servants. As says Manu":-" Neither the king or any servant of his shall themselvee cause an

1. Verse 139. :i'l.fP:H'If is ano~her re!1ding. 3. 1. 20.

2. Oh. VIII. 4-7. 4. Oh. VIII. 43.

Y~jiialJalicya J .. Verse 5,

MIUk~i1.ra.-Afler th' damplaont.

action (lawsuit) to be started, or hush np one that has been bronght by another." 1 Pa,ra,i!l, by others, i. e. by one, two, or many others; the Author iudicates hereby that a disput.e may arise between ooe mall, and one, two, or many men. The text of Nara,da, viz.-HMen con-versant with law lay down that disputes between one and many, with women, and with servants, are inadmissible as a suit" refers to snits having different causes of action.

By tbe ~xpression 'informs the king' is also meant 'that clad in a decent or simple dress, the plaintiff shonld inform the kiog' when questioned by him. When the complaint is proper, (i. e. according to law), then the summoning oE the deEendant by sending a seal &c., and the non-summoning of those that are beyond the court's jnrisdic-tion, or exempt from it (as being afflicted with disease) being evident from the context, has not been expressly mentioned. This, moreover, has been clearly laid down in a,nother SmrtP: "At the (proper) time, he (i. e. the king or his proxy) should thus inquire of the applicane standing and speaking before him: what is your Buit for, and what is your grievance? .Dou't fear, speak, 0 man I By whom, where, when and for what (have

5

10

15

you been) troubled? Thus shonld he ask one who has come 20 to the court. Thus interrogated, what he speaks (as his grievance) he (i. e. the king) should consider along with the Councillors and the Brll\lmaJ;las; and if the complaint be proper or one according to law, (on order bearing) the seal, or a messenger, should be sent to summon him (defendant).

"The king should not cause to be summoned a person who is afflicted with a disease, a minor, the old, one in

Cases where sum- difficulty and (me engaged in (religious) duties; mons mayor

may not issue. (nor) a perBon who would suffer great loss' if he were summoned, a person affiicted with pain (caused by the separation of relations); perSODS

engrossed in the king'. service, or in celebrating festivals; the 1. The Biilambhat\i and the Vls'wes'wari give an alternative meaning

thus: "Dor should he accept a plaint presented unjustifiably by a party. " 2. Rilty.yana Verses 86-88. 3. Plaintiff:-Lit: one who pleads his cause in court. The reading given

in the foot-note is adopted: another reading is lstaDding in a humble posture.' 4. BiJ.lambhaHi P. 9 L. 5 &c.

"

25

30

MiUksharl1- TVho BllUrtlcl Jll}t be ii!ontllOlUJd? exoGptio7Js. [ Yd}fla'!JatJ~!la rTer8B s.

intoximited ; persons possessed by evil spirits; idiots or the insane: the aggrieved, or persons who are dependents; (nor) a yonng and helpless woman, II highborn lady, a woman recently delivered, a maiden belonging to the higheettribe; (became) these remales are declared to be

;) dependent on tbeir tribes. 1 A snmmons is allowed against women upon whom tbeir families are dependent, profli

Exceptions. gate women, and tbose who are prostitutes, as also against snch as are oE low birth or are

degraded. Taking into consideration the time and the place, as also 10 the~importance or otherwise oE the cause, the king may cause even the

infirm &c. to be summoned Iud brought comEortably by means oE conveyances. He may even summon, in weighty matters, hermits and the like, whobave retired into the woods, aEter~ notice of the complaint' taking care however that he thereby does not give any

15 offence." The law o[ arrests which is plain in itself, has been laid down

by Narada1 :-" A plaintiff should arrest a Arrest. defendant who absconds when the cause is about

to be tried, and one who disregal'ds the plaintiff's :20 words, until the legal summons has been issued. Confiuement to a

place, arrest Ear a limited time, restrictions regard-The Eour'rold di ing travelling, and prohibition from a specific act; vision or arrests. this is the fourEold division oE arrests. One

subjected to an arre3t must not transgress 25 it. IE one arrested at a time propsr for arrests transgresses

his arrest, he should be punished. One who, in causing an arrest, acts improperly, shall also be liable to punishment. One arrested while crossing a river, or in a forest, or in a bad country, or during a great calamity, or while in similar predicaments, commits no

30 fault by transgressing his arrest. One about to marry, one oppressed by a disease, one about to offer a sacrifice, one afflicted by a calamity, as also one (already) accused by another, and one engaged in the king's service; (as also) cowherds engaged in tending cattle, cultivators In

1. Verses 97, VS. 2. 'At their leisure and by meD.llS 01 conveYll.llCeS' BCla11iblwHi .

. ';'_'I~ 3. ~IF{15~[tr-or it may also be rendered "ha.ving f1scertained the importance of the oompla.int."

.1. I. 47-54.

Y uliiaf}aZky!l. J Y8fS8 5.

VlramitrodRY8~~gent~ ..

the Bet of sowing the crops, artisans while engaged in their own occnpations, and warriors during warfare.

Arrest means a restraint by the king's orders. The weak. and . others (exempted) shan depute their Bon or. Bome

"PAGE 5. other relative; and these (relatives) will .uot 5 become liable Eor speaking without authority for

another, as will be seen from the text oE Naradah "He, who is not either the brother, the father, or the son, nor is one acting under' an order or authority of another, and speaks for him, deserves punishment; as does he who makes contradictory statements in 10 judicial proceedings." (5).

Viramitrodaya The investigation of a Judicial Proceeding (VyavaMra) being

dependent on the knowledge of the subject. of a jlldiciaLproceeding ( VyavaM.ravi~kaya-j1iana) the Author mentions generally the subject 15 of a Vyava~ara

Yajiiavalkya, Verse 5. Marge,!a 'by a way', i.e., means which is outside the Smrtis and

good uBage ; parairaclkar1kita~, 'by others injured', i.e., outraged; rd.jfie, 'to the king " of the attack by another, avedayati, 'informs', tat; 20 , that', then becomes vy.vaMrasya padam, 'the suhject for a judicial proceeding', such as the Recovery of Debts and the like.

By the use of the word elwt 'if', it has been indicated that the initiation of a dispute Bhould not be started by himself. That has been Btated by lVIanu': "Neither the king nor any servant of his shall 25 themselves caUBe any action (law suit) to be started, or hush up one that has been brought by another." The re.ding yad', 'which', is approved of lVIis'ra and others. Which, e.g., the Recovery of Debts and the like he informs that should be utilised.

The plural in parailJ" 'by others', is where the matter at issue is 30 one. Where, however, the points nt issue are different, the text of Narada' applies: "Of one with many, against women, or against agents. a dispute is admissible."

1. Oh. II. 23; 2. Oh. vnI. 43. 3.,:. In the place of ,net ('

650 Viramltrodayn-Illa.clmissibZl Plailltb', [ YdjfJavall~ya VersB 5. By the use of the word /ti, 'indeed' it is intended th~t what has

been complained of, must neceBsarily be inveBtigated. There, Brhaspati' mentions a special rule" The preceptor and the pupil, the f~ther aud the son, the hUB band and the wife, Lhe mastsr and servant, of theBe

5 when brought together, a. dispute is DOt permissible. Of onB with many, with women, and with BervantB, a dispute is inadmissible, as has been declared by the learned. That which has been excluded by the king, as also that which is likely to be against the intereBts of the citizenB, or of the nation in entirety, aB also Bimilarly of tbe BubjectB. OtherB also as

10 are antagoniBtic to (the interests of) the City, village, and the people in general, all Buch diBputeB have been declared as ino'lmissible."

That subject of a judicial proceeJing, moreover, generally is of two kinds, from a plaint founded on suspicion, and a plaint founded on certainty. A plaint, moreover, is two-fold, in the form of an aBBertion

15 and in the form of a denial; aB 'my gold haB been taken away by him " and' Having taken money as a loan from me, be does not give.' AB B'YS Katyilyllnas :-" Wh.t iB JUBt, he himself does not wish to do, Or who does wh.t iB unjuBt ". Manu' particularly cla"ifies the topics for a judioial proceeding thus: "Of tbese, (1) the first is tbe recovery of debtB,

20 (2) depoBita, (3) Bale without ownership, (4) concerns of several partnerB together, (6) and reBumption of gifts, (6) non-payment of wageB, (7) breach of contract, (S) rescisBion of sale and purchaBe, (9) disputes betwsen the owner (of cattle) and the cowherds, (10) the law of bound.ry disputee, (11) aSBault, (12) sl.nder, (13) theft, (14) heinous offencee,

25 (15) adultery or ssduction, (16) dutieB of h usb.nd and wife, (17) partition, (IS) gambling and betting; these are in thie world the eighteen topics of Judicial Proceeding B." (5).

S'ulapal1i. Yajiiavalkya, Verse 5

In a way outside the Smrtis and good usage, one pursued by another, 30 either monetarily or bodily, one complains when troubled, that is the

point for the investigation by a Judicial Proceeding. That is of eighteen kinds. so says Manu': "Of these (1) the first is the recovery of debts, (2) deposit, (3) sale without ownersbip, (4) concerus of several partnere together. (5) and resumption of gifts, (6) Non-payment of wages, (7)

35 breach of contract, (S) rescission of sale and purchase, (9) disputes between the owner (of cattle) and the cowherd, (10) the law of boundary disputes, (11) assault, (12) slander, (13) theft, (14) henious offences, (15) adultery or seduction, (16) duties of husband and wife; (17) partition;

1. See Harada II. 12, last quarter. 2, Verse 139, 3. Qh. VIII. 4-7,

y djnava17~ya ] Ver8e O.

MltilksbarU-Written plaint. 651

(18) and gambling and betting; these are in this world, eighteen topios of a Jndicial Proceeding.

By the expression if he 'informs', is meant that by himself .. dispnte shonld not be started, B!ahaspati states a special rule, "The preceptor and the pnpil, the father and the son, the master and servant. 5 of these if bronght in conflict togethsr, a judicial trial cannot be admitted" (5).

When the defendant is brought by one of the (three) modes, viz., by the signet, the written order, or the messenger, what further should be done? So tbe Author replies 10

Yajiiavalkya, Verse 6. In the presence of the defendant should be reduced

to writing whatever is alleged by the plaintiff, and marked with the year, the month, the fortnight, the day, the name; the caste, and the like. 15

Mitak~hara :-What is asked for is the artha, (the relief sought) the object to be accomplished; and a plaintiff (Arthi) is the one who sets it up. His opponent is pra tyarthi, the d4endant.

Be/ore, agrata~, tasya, (of) him, i. e., in the The Charac presence of him, lekhyam, should be written, should 20

terietics of a Plaiut.

be reduced to writing. Yatha, whatever, in which mode i. e., as alleged before at the time of making tbe first complaint; and not otherwise; for in

that caBe on the ground of departure (from the first complaint) the trial would be vitiated. For' "one who alters his former statement, one who shuus the judicial proceeding, one who does not put in an appearance, one who makes no reply, as also one who absconds after being summoned; these are the fi lie varieties of a faul ty (Hina) litigant."

1. Nilrada. II. 33. Katyayana ,tute, the several amercement, for these; thus: see verse 202.

3Ptf91;fr q[JIf'l:. ~"f (,j;~r~

652 MlttlkshnrtL-Ol)uttllltB of the Plaint.

5

10

15

20

25

30

35

The allegations of the plaintiff having been once reduced to writing at the time of thefit'st comp'aint, it

P. 5. L. U. might be said that writing it ovel' again would ~ ~. he meaningless, 80 the Autbor says: Sarna

masetyadl, year, month q-c-marked with the year, month, fortnight, date, day &c., as also bearing tbe names of tbe plaintiff and the defendant, and their castes snch as Brl1~malfa &c. By the word Adi, q-c., are also included the amount, the quantity, place, time, reason for forhearance' and the like (Adll1i). As has been said' :-

"Tbat is termed a plaint or complaint, which is presented or made to the king, and which contains (the Artha)

P. 5. L. 12. tbe cause of action, which is in accordance with tbe law, whicb is complete and devoid of

confusion, which contains the point at iSBue, which is couched in significant language, and which is consistent with the claim made out; (which is) intelligible, not inconsistant, certain, capable of proof, concise yet bringing out tbe whole cause of action, not impossible in regard to place or time; which contains tbe year, the season, the montb, the fortnight, the day, the time, the country and the particular district, the village, the house or dwelling place, the point at issue, the designation, the caste, the personal description and age; which contains the measure and quantity of tbe object to be secured, the names of the plaintiff himself and of the defendant, and (which is) marked with tbe [James of the ancestors of himself aud of the defendant respectively, as also with the names of kings; (which contains) the cause' of forbearance and the injury done to self (the plaintiff); in whicb are mentioned (the names of) tbe grantee and the grantor."

Bha~hft is the same as Pratij,'a or Palcha. It hus no other meaning. The point to be noted is that at the time of the first complaint, only the cause of action is written, while in tbe presence of the defendant, the year, the montb, and otber particulars are written.

Although the specification of the year is not necessary in all proceedings, still it is essential in trials concerning

P. 5. L. 19. deposits or pledgee, gifts, and sales, on account of the text:3 "In the case of pledges, gifts, or

1. iffmf~-Rea90n for forbearance-i. c. where the suit is apparently brought nile! the proper time, plaintiff has to explnin the delay.

2. BfiJnmbhnHi refers to this as the text of NfLro.dE1 1 but it is not iOlmd there, 3, Yajn. II. 23.

Mltll.ltBhnrIl.-Par iiculars.

sales, prior transactions have preponderance". " And' also 'in money disputes, such as in a case where a certain definite amount was brrrowed hy a certain person and was repaid in the same year, and agaiu in another yeat' the same amount was horrowed by the same

Mi3

person, but on demand he sets np repayment, the utility oE the 5 prescribed rule would be that payment' and repayment in another year would he proved, The same (rule) would apply in the case oE months. The provisions regarding' (the specification oE) country, place &c; however, apply only in transactions concerning immovables, on account oE the (Eollowing) text.l:" "In suits for immovable 10 property, these ten (particulars) should be entered in the plaint viz; the province, the village or" town, so also the particular site, the caste and names (of plaintiff and deEendant), the namesoE neighhours, the ineasuramentand (descriptive) Iiame of the field, the names of the father, the grand-father &0. as also a desCl'iption oE former kiugs." Country, 15 e. g.Central Province &c.; "Place or viliage such as Vitrfil),asi &c.; Particular site i,e. honse, field &c: of the same village (town) properly identified and marketl out by the specification of boundaries on the East, West,&c. Caste-i. e. of plaintiff and defendant such as Bra\lmuJ;la &c. Name-i, e. Devadatta&c. Neighbours i, e, people residiog on the 20 adjoining land, lYIeasurement :i: e. of land such as a nivartana', Name of the jield-such as-a rice-field, or a rotation-crop field; black-field, white-field &c. And also names of the father and grandfather of the plninfiff and the defendant; and also D,specijication of iwmeso( thethree previous :kiilgs. The object intended is that 25 the year, month &c" in each transaction should be written as much only as is necessary for that transaction.

Snch being the characteristics .ot a plnint, those (plaints) which are wanting in these essentials, bu t present

'" Page G. an illusory appearance of a plaint, are evidently 30 vicious plaints, and so .vicious "plaints, have not

been separately mentioned by the Lord of Yogis' (Yogis'wara). Others" haveinentioned for. the sake . of (greater) clearness,:

"The king should discard a vlcious plaint; which,is impossible, does . . 1.. 'of Katyilyana, 1~7,128. 2. i. c. 20,rods, 3. i. o. the sage,YcLjncitialkIllt. 4, see B,h.sp.tiTIL 6,9,10; and "Kdty"yan. 160.

654 Mltaicaitarli._ Vi.CtUltl>' Plaints. [- Yajilavail~ya Yefs: 6, not disclose any injury (to plaintiff), is meaningless or causeless, cannot be proved, and which is cJntradictory." Impossible, as e.g' , the defendant having taken my hare's horn, does not !eturn it,' Containing or disclosing no injury, as e. g. 'the defendant moves

5 about in his house in the light of the lamp of my house". Meaningless, i. e. devoid of a definite me aning e. g. ka, cha, ~a, ta, pa, ja, cIa, da, ba, &c. CauselesB, as e.g. tbis Devadatta reads in a charming voice near my house &c. Incapable ~f proof, as e.g. "I was ridiculed by Devadatta with the knitting of bis brows"; this is

1 () incapable of proof on account of the impossibility oE the means (to prove it). Having a transitory character, (there is) no possibility or (obtaining) II wituess much less a writing; uor, being trifting, would it (the fact) be amenable to an ordeal. Contradictory, as e.g. "I was abused by a dumb man" &c. Or such as are opposed to the (usage

1.5 of the) town, nation &c. These are reEutable by their very nature, and thererore are

not specified. Even here" the impossible &0.," 1. 8. are selected as illustratious for the sake of

explanation, L that too does not put away a 20 plaint which is a combination of several counts. "All the following

plaints are declared as inadmissible, viz. that which is prohibited by the king, which is hostile to the (interests oE) citizens, or to the whole nation, or to the ministers; as also others which are hostile to the usages of the. city, town or eminent citizens"

25 It has been said above that" a complaint which joins together several causes of action is not allowed"; but

L. lB. there woulJ be 110 fault in such a case, if it is expressly described as a plaint 'mixed up of

many objects', it being unobjectionable to allege that " my :,0 fol~,-_(Jl:>t_hes,_or~silver_has ... beent_"-~:.~_",."X_ bL_th~5 man. "

1. c:g;rq!'~T :-Means Il clearer explu.nation by drawing lLttentioll to the component parts of the sentence or words, as opposed to (1 rough, or general, or popula! conception. It is the same as i'fr'9i'f: ~r;f sometimes used e13ewhere.

The meaning is that we know, without tuis text, that plaints which are a:rm~ are q-~rl1ra,S and must be rejected j still tbe text is used to make the gist of the meaning of the word q-~ clear. By gq'rtfRr here is meant the ~:q;qf~ of the word ~L:l.

Ya;r.avalkya ] Versll O.

Mitllkshnr!l-1lIixed pleas.

If it be said tGat a plaint becomes vicious on account of mixing together several counts in Buits for 'the recovery oE debts' &c.,

655

that to) will not hold. For, the plaint is allowable which contains averments like the following, viz. 'He borrowed my rupees at interest', ' I delivered gold into his hand' and 'he deprives me of 5 my field.' Only (in sach c.ses) on account of a difference in the causes of action the trials are held sep~rately in succeEsion and not all together. As says Katyaya.na.' : "A king, desirous of arriving at the truth, m.y andouhtedly admit even tbat plaint which contains several connts, bat which is in conformity with the principles of 10 law." ThereEore the meaning of the rnle is, that a plaint containing several counts will not be allowed to be established in all the counts at one and the same time.

The word (Arthi) plaintiff, inclades his Bon, grandson &c., as they have a common interest. One specially appointed 15 as an agent, is also presumed to have au identity of interest on account of the appJintment, according to the textZ-" IE one is deputed by the plaintiff or is chosen by the deEendant as his representative, his success or defeat is regarded as that of the party for whom he (the representative) pledds." The success or defeat of 20 the agent or representative is of the original principal only.

rhis, moreovel', should be jotted down npon the ground or on a board with white chalk, and aEter it has been

L. 21. revised and corrected by rubbing off and rewriting, it should be written down upon a paper, according 25

to the following text of Katyaya.na.3 viz. "The Prfidvi!>lUa or the Chief Judge should get down the plaintiff's statement, as made by him in his own way, on a b~ard in white cbalk, and then on a paper, aEter it hlS been revised." The revision and correction shonld be made only while yet the answel' (of the defendant) has not been 30 filed, and not thereaEter, as otherwise there is the fear of the proceeding never ending.

1. Verse 137.

2. Of N arad. 1. 22. 3. Verse 13I.

4

656 Viramitrodayn-Form Qf the Plaint. [ Ydjna.tJall~ya Verse 6.

5

Hencs Nara.da.' has said: "He (i. e. the Judge) may make corrections in the comp'aimnt's first complaint so long as the answer is not received; being stopped by the amwer, tbe correction should cease." If the Councillors cause an answer to be filed without revising the plaintiff's fir at complaint, then the Councillor. should be punished according to the punishment laid down iu the text2 (Ragaliobhat

Yajiiavallcya ] Verse O.

ViramitrodBya-Ag81its, where admissible. 657

grandson of such and sllch, the son of sach and sach aud by 'name such and sl1cb, within the territory of sllch and such a king, somuch qn.ntity of gold was taken as a loan, for the repayment of that, a demand was not m.de by me npto sach and such a time out of regard for his friendship; or W'IS dsmanded in the last year, &c., tbus, containing 5 tbese and like recitals comes to be the body of tbe written complaint to tbe king. But there, 'you owe me a hundred of gold, you baving obtained from me as much amount as a loan', is the body of tba Plaint, 'You shonld give', is the expression of tbe ralief, while the rest is useful for a decision. Thus, where n. much portion of the complaint becomes established, so 10 much should be stated by the Plaintiff in tbe plaint, and ba cansed to be written by the king, otherwise it should be noted that there may be the fault of an undisclosed proof. The magnitude of the amount us also an excessive cause of trouble may also b8 included in addition. In regard to that also, justice which is asked for, must be included in the first 15 information.

, By the plaintiff '-this is where it is pOBsible. When, however, he is not available, says Narada

': "Hone be daputed by the claimant, or

chosen as his repreBentative by the defendent, he for whom he speaks, of those shall bo the victory or defeat. (22). He, who is not either the 20 brother, the father, or the Bon, nor is one acting under an order or authority of another, and speaks for him, deserves punishment; aB does he who makes contradictory statements in judiciol proceedings." (23).

B,haspati': "For persons of immature intellect, for the dull, the intoxicated, the old, the women and for perBons suffering from a 25 disease, ODe may depose for a plaint or an answer, even though the man may not have been appointed."

In some cases, however, Rat yay ana' prohibits an agent thus: "In accusations for Bralfmicide, drunkenness, theft, sexual intercourBe with tbe prece ptor's wife, a repreBentative is not allowed, and even in 30 similar other accusationB such as, for homicide, theft, crim. con. with others' wives, eotiog the uneatable, as also abduction and despoiling of a maiden; for abuse, false measures, similarly for hatred against the king, representative must not be permitted to be given; the Actor must plead inperBon." 35

The duties preceding the plaint" either of the king, or of the Oomplainant, being too well known in other Smrtis have not been stated

1. Ink, Oh. II. 22-23. 3. Verses 93,94,95,

2. Oh II: 34.

658 Vlramitrodnya-1YllOJIl. OllC may, MId 1llay 110&, arrest. [ Y djitavaZkya Verse G. by the Author of thiB work. e.g., says Katyayana', "When a party is in possession of a thing seized by him, "' trial shonld not be Btarted by the king; it should either be restored t.o him. or it Bhould be deposited with a t,hird party." And Narada': "One who absconds wben

5 the cause is t,o proceed, who ciisreg "ds the plaintiff's words, snch a dsfendant the plaintiff may arreBt, pending the summnns being Berved (47). If one nrrested at a time prnper for arrestB, transgreBses hiB arrest, he Bhould be punished. One who, in causing au arrest, acts improperly shall be liable to punishment" (51). AlBa," Ooe arreBted

10 while crossing a river, or in a forest, or in Il. bad country, or during !l gre.t calamity, or while in similar prediCl,meots, commits nO f"ult by tranBgreBBing his arrest." (49). So, "One about to marry, ooe oppreBBed by a diseaBe, one abnut to perform a Bacrifice, one all:licted by B calamity, as also one who is Rccused undor the law, as also OnB engaged in Bowing

15 operations (52). CowherdB engaged in tending cattle, cultivators in the act of gatheriug the crops, artiBans alBo during the period while engaged in their occupatioue, and warriorB during warfare (53). One who has not yet arrived at Yfmrs of' disoretion; 0. messenger, one about to give alms, one engaged in 0. vow; those in difficulties 0.150, mnst not be

20 arreBted, nor should the king summon them" (54). Here, the excellence of the Plaint is ' brief in word" but ricb in

meaning' aB Btated by Brllaspati' and otberB.

Of the faults, such aB Btated io tbe text': "Impossible, fauny, meaninglesB, cauBeless" and the like, and their absellce has been

25 indicated by the prefix a,l in the eXprs,sion iJ,-vcditam, 'alleged '; these, moreover, through fea.r of swelling the treatise are not being expanded here.

Plaintiff, however, mUBt not depo,s controry to his firBt informa-tion, as Bays Brhaspati: "That matter, morenver, which one alleges, one

30 must not change iu form; nor sbould he resort to anot.her alternative; if he rSBorts, he is (deemed to be) defeated in regard to the first." Before, however, the invBstigu.tion commences, there is no 1038 t,o the plaintiff deposing more or leBs. That says Narada': "Befors the anBwer to the plaint has been tendered by the defendant, the plaintiff

35 may amend his own statements 80 long as there is no sight of the

1. Verse 120. 3. See Oh. III. 6. 5. Oh. II. 7.

2. n. 47,49-54. 4. OJ Katyayana Vers. 140.

Ydjilavulkya. ] Viramitrodaya .... Sulapll.ni-No change after the Answer is filed. 659 Verse O.

. .

answer. Of one who has been blocked by an answer, all writing ceases". Here the wore! answer is uj) 4. Verae 132. 5. i. c. of Katyayaa-a, Verse 125) where the reading is B"H:!t'lPflof ~1.{':;:r

660 5ulapiinl_Bighl to begt/l. [ yaJuavalkya. VerHe 7 (1), VVho will have the position of a plaintiff '/ ;'So Narada' says,

uHa who has had greater trouble, 01' whose objec~ is of greater magnitude, to him should be given the right to begin as a plaintiff, and not the one (necessarily) who lodges the information first." Brhaspati2 states the

5 characteristics of a Plaint: "They know a plaint to have five points, viz. free from the faults regarding a declaration, with the point which is susceptible of proof, accompanied by good arguments, precise, and well-established' among the people. (6). Brief in wads, rich in meaning, absolutely free from ambiguity and confusion, devoid of conflicting

10 argnments, and capable of meecing the opponent's arguments." Ki1tyayan~' states a spacial rule: "The Judge should cause t.o be

written the first information as ol'igillally deposed on a board with a white chalk, and then on a parchment after it is corrected." (6).

Thus after the plaintiff's revised complaint has been written 15 down upon paper, what should be done? so the Author says

Yajilavalkya, Verses 7 (1). Of the defendant, who has heard the plaint, the

answer should be taken down in writing, in the presence of the plaintiff or the complainant. 7 (I).

20 Mita~hara :-S'rutartha i. e. the dqfendant-is one by whom the substance of the plaint haB been hem'd,

The Answer. S'ruto; of that the answer. It is caned the answer or replication because it appears after the

plaintiff's complaint. Le'khyam. should be ta1cen down in writing, 25 i. e. should be reduced to writing.

In the presence of Sanl1idhau, of the first in/ormant, purva-ve'dakasya, the plaintiff i. B. near him. An answer is that which is a refutation of the complaint of the plaintiff. As has been said' :

1. Nat found in Narada, but this is cited as f1 text of Katyayanll, (V. 122) in orn:['li- and other work,.

2. Oh. III. Vene, 5, G, cited in Raghunandann p. 12 (.Tolly). 3. liilq;f\ii '9. 4. Verse 125.

6. By Prajapati. See SIDfbichandrika p. 42. I. 30.

Ydjilat1alkya J. V,," 7 (1) Mitl'l.lt~hai'!l,-Esse1Ztialll of an a7lBWCTS.

"Men versed in law consider that an answer, which covers (the points raised in) the plaint, is concise, nnambignouH, not inconsistent, and is

easily intelligible withont an explanation." Which " P. 7. covers the points in the plaint i. e. is capable or

refnting it. Concise i. e. accJrding to ( thB rules 5 of) jnstice, not inconsistent with jnstice. Unambiguous i. e. free from doubt. Not inconsistent i. e. not contradicting statements made before and after. Not intelligible without an e.vplanation, i. e. the meaning of which requires an explanation on account of the use or obscure words, or on account of the implication or express use or 10 cases and compounds (which are) difficnlt to split up, or by reason of the use of expressions (cnrrent only) in the language of foreign countries. That which is not so tainted is called a proper answer.

P. 7. L. 4. That, moreover, is four-fold viz. admis" sion, denial, confession and avoidance, and former 15

Fourfold answer. judgment or res judicata. As says Katyayana.' "An answer is fourfold viz. by pleading the truth

or the falsehood (of the plaint), or by setting np a special plea, or a decision in a former judicial proceeding." Of these an example of the answer by admission, Sampratipattiz', may be found in the case 20 where the defendant, being charged by the plaintiff that he owed a 100 rnpees, replies by saying "yes, I do owe (the amount)." As is said2: "It (i. e. an Bmwer) is called an admission, when the truth of the point at issue is admitted." An answer by denial, li1ithyfl, is on the other hand made by saying, "I do not owe (the amouut)." So also 2.'j Katyayana3 : IE the defendant give a denial to the claim made, that (answer) is known in law as a denial. "

Snch a denial moreover is of foUl' kinds: as e. g. 'This is false', 'I do not know at all', 'I was not present

Four kinds of there at the time (of the transaction)' and 'I was 30 denial. not born at the time '; thns fondold is an

answer by denial'.

1. Verse 165. 2. by K&ty.yana Verse 168. 3. Verse 187. 4. Ndroda Oh. II. 5; ALso Katy6.yana 169.

662 [ YdjfiavuU.y!l, Vm, 7 (1) Tbe (answer by) conEession and avoidance, Pratyawaskanaanarn,

is, e.g. tbus: "true it is tbat I received, but I returned P. 7. L. n. it, or obtained it as a giEt." As Bays Narada,'

"IE a deEendant, admitting plaintiff's written 5 allegations, sets up a plea, tbot is called a c)nfession and avoidance."

Tbe (answer by a) former judgment, Prftl.1Ilyftyam, or Res Judicata would be wbere tbe deEendant wonld speak thus, 'I was sned by bim on this cmse oE action, and in that suit he was defeated in a trial at Jaw'. It has also heen said hy Katyayana': "IE a person, though

10 defeated by the customary procedure, again files a written complaint' tbe answer to him would be, 'you were defeated formerly;' thiR is called the plea of former judgment."

Tbe characteristics oE a propel' answer having thus been established, the viciousness of those answers which

15 P. 7. L. 17. are without the charactaristics of a proper cuswer, but which bear the resemblance oE au answer, is

selEevident. This bas also been made clear iu another Smriti' "That answer which is dubious, departs from the point at issue, is either too short or too long as compared with the paint at issue,

20 covering only a portion of the claim, [lnd is of the like sort, cannot be called a proper auswer. An answer which is irrelevant, incomplete, oE concealed import, nnd is inconsistent, as also that which can be uuderstood by un explanation (only), and which is unreasonahle, is not an a~18wer which will establish tb. plea set up". Of these:

25 Sandigdharn, ' a dubious answer' is B. g. where it is alleged that de[eudaut borrowed 100 gold coins, the defendant auswers' yes, I did borrow (something) but (I am) not certain whether IuD gold coins or 100 Jl{a,~hd.s:" Ptalc~tadayat,' Departs from the point at issue,' as where in a suit for 100 gold coius, the defendent

30 auswers' I owe 100 pa1!as '. Atyalpam, 'Too small,' as where in a a snit for 100 gold cains, the answer is 'lowe five.' Atibkliri, 'Too large,' as where in a suit for 100 gold coins, the defendant answers

1. Of. KatyfLYfllla 170. 2. Verse171. 3. Of. KoltydYflua 174, 175. 4. A gold measure, lo,lh part of " qOj. "'fIlii fii.rf;'rFriii >iI'l: 1!trTt~

Q[t",'l1'ifFr: ".

YdjfiavalkyaJ VerBes 7 (1).

MIW{Sbnra-Defec!, 'mplaincd. 663

'lowe two huudred'. Palc~haiTcades'avyapi, Covering only a part of the claim, as where in a suit for (recovering) gold, clothes, &c., the defendant auswers-' only gold was recovered, nothing else '. Vyastapadam, Irrelevant, as iu a suit for recovery of debts, defendsnt answers with reference to an entirely different matter, as, 5 e.g., in a suit for recovering 100 gold coins, defendant answers-'I have beeu beaten by him'. Avyfipi, Incomplete, z. e., not covering the particulars of the country, place, &c., as, e.g., where it is alleged. 'He hes deprived me of my field to the east of Wadir;t.si iu the Central Provinces, defendant answers.' "Yes, I bave 10 deprived him of a field" Nigl1dMrthctm, Of aoncealed import, e.g., in a suit for 100 gold coins, defeudant retorts thus 'what I Is it I alone who owe anything to him?' Here by this dubious statement, it is implied that either the Chief Judge, or a Councillor, or the plaintiff is in the position of a debtor to some one else and thus the 15 statement has a concealed import. AMlam, Inconsistent, i.e., Contradictory having regard to the statements made hefore and after; as in a suit instituted for 100 gold coins, defendant answers, 'yes I did receive tbe amount, but 1 do not owe it.' VyaTchyagamyam, Requiring emplanation, i.e., intelligible by the help of explanations 20 required1 by reason of the implication or express use of cases and compounds (which are) difficult to split up, or by reason of the use of expressions current in the language of foreign countries. As for example, in a suit for 100 gold coins due under a paternal debt the defendent answers: 'As for the expression grihita-sata (a bundred 2 i

1. This hilS been given as on instance of the' Implication or express use of caseB and co.mpounds (which are) difficult to split up (~:fiia'2"[q+rIm~ aqral;

664 MitakshElrfi-i1limtuTc vf pleas. [ YaJnavalklla rrero8 7 (1.)

5

10

15

having been accepted), I do not know its connection with gold coins and my father.' Here, the real meaning (of the defendant's answer) is this: " As for (the expression grihita-s atasya pitU(l) my father having accepted a hnndred coins, I am not aWare of his having received gold coins" Asaram,' Ullreasonable, i.e., opposed to reason. As in a snit alleging' he borrowed 100 gold coins at interest, bnt did not the principal,' the answer is' Tl'l1e, I have paid the interest, bnt not receive the principal.'

By the use of the word 'answer' in the singular number, a

" Page 8. combination of answers is excluded. As says Katy ayana,z-" That which admits part of the claim as trne, sets up a special pleaS to another

part, and makes a denial of a third, is regarded as no answer on account of the mixture (of several pleas)." The same Author' thus explains the reason why ~uch (n statement) is regarded as no answer: "In one 8uit, the bnrden of proof caunot Jie:on two litigants, nor can both obtain judgment, nor can two proofs be adduced simultaneously in one BUit." In a combination of the answer by denial and by special exception it is incumbent both on the plaintiff and the defendant to

:10 adduce evid.ence, as has been said: "In the case of a denial,' the proof rests on the plaintiff, while in a special plea, on the defendant." The ~imnltll.neous proof by both in one transaction is contradictory. As for instance where the allegation is, "he has taken gold and 100 rupees", and the answer is "gold was not taken, 100 rupees were taken, but were returned." In a combination of the pleas of special exception and former judgment, the defendant alone has to adduce evidence. " In the combined plea of former judgment and special exception, the defendant must exhibit proaL" As where the

so charge is that gold lYas borrowed and it is met by an answer that it was retnrned, . and also that the plaintiff was defeated by a judicial trilll with regard to silver. Here the former judgment should be proved either by (prodncing) the decree itself, or by the evidence of

1. liatyayit17.a illustrates thus: 'lil'P," 'l"l[ ii1 ur.i[ ","'''lll'?" 'l~ I 3Tijl,fqlif 1!~ U"l1l' iil'O\{ii&1fit I

:!. VerBe-189. 3. Oorrespond to tho plening, in Engligh law 01 QC01ifo8sioual1davoidrmcll.,j .1. Verse 190. 5. i'r''l[-['iit~1 ill','n'ii~ nalambh.tj;i P. L. 19.

Ydjilavalltlla ] VorDe.7 (1). Mlt1lk~bllra-Ordllr in a (Jombmatioll of pleas.

those who gave (or were present at) the former judgment, while II plea of special exception should be proved by witnesses, documents, &c. Thus there is an opposition between the pleas of res judicata and special exception.

665

The same would be the view in the case of a combination oE 5 three pleas in an answer. As, e.g., where it is alleged 'he (the deEendent) borrowed II hundred gold coins, II hundred rupees, and also clothes, the defendant answers "True, gold was borrowed, but it was returned; the hundred rnpees were not taken at all; and as regards clothes, he has already been defeated in a former judgment." 10 So also in the case of a combination of four pleas.

These mixed pleas constitute vicious answers when set up simultaneously, each particular plea not being

P. S, L. 12. likely to be established without its particular proof; but when taken separately they are good 15

answers. The order is to be determined according to the will of the plaintiff, the defendant, and the councillors.

When, however, there is a combination of two, that plea, which contains the most important point should be taken up for proof first, and the suit should proceed; the minor plea should be 20 taken up afterwards and the trial determiued. Where there is a combiuation of (the plea of) admission and another piea in answer, the suit should be tried by taking up the other plea (for proof); for a plea of admission there being no (necessity of) proof].

As Harita. after observing: 'If a denial and a special 25 exception should occur together, and if the plea of admission. be made with any other, which of these should be accepted as an answer?" has remarked: "In such a case, that which contains the most important point or which is conducive of proof, is to be cansidered as an unmixed answer; any other answer becomes otherwise;" 30 i. e it becomes a mixed answer.

The meaning is that the order in which such mixed pleas are taken up for determination depends on choice by regard to the plea

1. It being imposslble to f1dduc~ 8'Vide~ce ~or both the pleas ~imultaneouslr !

666 I\iltn.ksltorn..-1'he same illzuJtratcd. [ Yci.iilUvaUcya VeT" 7 (1), that survives last. Of these, the plea containing the important point occurs, as eg, where in a snit it is alleged that "the deEendnnt borrowed gold, one hnndred rnpees, and also clothes" and the answer ie, "Trne the gold was taken, but one hundred rupees were not taken, and as for the

.J clothes, they were taken, hut were retul'ued." Here the answer by denial being the important plea, the trial should proceed after taking plaintiff's evidence. Then the trial shonld proceed with reEerence to the clothes. The S8me order should be followed in the combinations of denial and previons judgment, or oE special plea and previous

10 judgment. Moreover, in the same suit, where the auswer is " True, I received the gold and the hundred rnpees, (but) I will repay (them); the clothes however, were not received, or having been received, were given back; or that he (the deEendant) was deEeated formerly in

15

.20

30

35

regard to the clothcs"; in such a case although the admissiou is the most important point, there being no necessity oE evidence for it, the trial should proceed aEter taking evidence on the plea of denial &c. Wherc, however, the denial and special plea cover the whole point, as e. g. where the plaintiff identiEying his cow by the horns, says "This is my cow, ( it ) was lost at a particular time, and was seen today in this man's house "; while the defendant says: "This is false, the cow has been in my house even before the time mentioned by him (plaintiff), or it was horn in my house." It cannot be said that this is not an answer, as it is competent to meet the point in dispute, nor can it be a simple denial, as a special plea has been introduced. Nor, there being no admission of a portion of the plaintiff's case, is it a Epecial plea. Therefore this is an linswer by denial coupled with a special exception. Here defendant has to adduce evidence, on account of the text' "the burden is on the defendant, in (the case of) a special

t' " excep Ion. It may be

P. S. L. 31.

asked, under the text': "In a denial, the evidence should be led by the plaintiff" why does not the burden (in the above case) lie npon the plaintiff ? The anBwer is that the text applies to a pure

denial. Then it is asked why should not the text' "In II special exception, the burden is on the defendant" be made likewise applicable only to a simple plea of special exception"? the

Ydjnavalkya ] V,,"7(1),

MtUksbarA-Simultancous proof by both not allowed.

llnswer is, "no, this cannot be; every plea of special exception necessarily involves a denial; and thereEore a special exception pure and simple can never occur."

As the well known plea oE special exception contains an

667

admission of a portion of the plaintiff's case, there 5 '0 P. 9. is a denial oE the rest. As e.g." True, I did

receive a hnndred rupees, but I do Dot owe (the amount) now, as I have repaid it. " In this example the particular point to be noted is, that there is no admissiou oE a portion of the plaintiff's case. This moreover has been clearly laid 10 down by Barita :-" Of the two answers viz. of denial and special exception, the special exception should be accepted (as an ans wer)."

Where the pleas oE denial and previous jndgment cover the (whole) point at issue-as e.g. in the allegation, "He owes a hundred rupees to me" the answer is: " This is false; he (the plaintiff) has been 15 deEeated formerly on this point"; there also the burden oE prooE is on the defendant, on account of the text" "When res j!!dicata and special exception are set np as a combined plea the defendant should exhibit proof." Because, the plea of a former judgment pure and simple can never occur, and (therefore) it might be said that the plea 20 is no answer, likewise, the plea of admission is a good answer (precisely) hecause, it meets the point at issue by admitting as established the claim which in the plaint was stated as the matter to be established.

Where, however, there is a combination of a special plea 25 and previous judgment, as e.g. when charged with having received a hundred, the defendant answers, "True, it was received, but it was returned, and, moreover, he (the plaintiff) has been defeated before on this very canse oE action", in such a CBse, proo E will be exhibited (in the order determined) according to the deEendant's 30 choice. Then the result is, thllt a double prooE in one sui t by the plaintiff and the deEendant should not he allowed.

Viramitrodaya, When the nature of the com plaint' has thus been reduced to

writing by the king, I.he Author procse!a to atats the function of the 35 1. Of Vyiisa.

Gfi8 Vlramitrodnya-ProctldnTilfor a,l AlIIlWI:r, r Ydjilavaalkya. I- Varlle 7 ( 1 ). king in regard to the second po,t of the ,indical prooeedillg in tho form of the answer of the defendant

Yaiijava1kya, Verse 7 (1) 8'ruto, 'heard i. c. properly co