The Collection of Hindu Law Texts Volume No. XXIX. THE SMRTICHAN DRIKA \ : x wae VYAVAHARA KAN BA-rarr i (Erom the ‘Nature of Vyavahara’ to ‘Property of Cluldren &c ’ { Forty Three Topics ) AN ENGLISH TRANSLATION WITH NOTES &c. BY J R GHARPURE, B A,LL B (Honours in Law), F.R S A Principal Law College, Poona Senwr Advocate, Federal Court of India FIRST. EDITION (All Rights Reserved ) 1948Printed st the Argabhushan Press, f15/f Shivajinsgar Poona 4 by Me V H Barve and Dublished by Mr V J Gharpure, M 44 LL. B at the Oftice vf the Collection of Hindu Law Texts Angres Wadi Vithalbhal Patel Road, Bombay 4 en ——— |NOTE The Author of the Smrtichandnk’ divided the treatise im three. groups or Kandas viz, the Avhara meludng the Ankita, the Vyavahara, and the S’riéddha The first of these \1z , the Achara has been translated and issued as Vol XXVIII of this ceties The Author has spt up the Vyavakira into two parts or Parwhhedas The present volame contams the translation of the Firat Part which devls with the Procedural side of the Vyavahdra and the General Rules The second part gives the provisions resuding substantive mghts ecmmencing with the ‘Law of Debts and ending with the Jaw of ‘Gambling and Betting on Animals’, and the ‘ Miscellaneous Chapter’—Prakirnaka The next two volumes will contain the translation of the remaining portion of the Second Part, and also a Preface for the entire work The Third Book which deals with the S r%ddhas will not be translated in English, but a Muirath: or Hind: translation may be issued as eircumstances May permit Law College, = J R Gaarrurk. 26th January 1948LIST OF CONTENTS Page 1 Ongin of Vyavahara 1 Departure from Rules ’ Vyavahdra defined ‘ The varieties of Vyavahfira 1,2 Their number 2 The Law of Debts 3 ‘Which debts to be paid amd which debts not to be paid By sons grandsons ‘With interest or otherwise Recovery of debts The Law of Balments t Upandht Nikshepa Nyisa Anvalita Vachita 4 Partnerships with examples 5 Resumption of Gifts Breach of contract of service Non pajment of w iges Sale uxthout ownership 7 Non delwery after sale Resersion of purchase Non performance of a compact 8 Boundary disputes Kinds of boundaries 9 Sdhasas—kinds of deseribed Abuse— V tkparushya 10 Assaul!—Danda 11 S4hasas—and Theft 12 Varieties of theft 13 Adultery its vaneties Gambiing and Betting on Aru als 14 Prakirnakas 15 Vyavehéra—Charrcteristics of 16 17 Varieties of 17 18-21 Vyavahira Chantra Royal Order 19 Deading Authorises 22 Pradvivéka 23 Paga Amftya 24 The Purobita 25 The Assessors their number and qualifieations 26 King, meaning and extent of 27, 28 When one not a Kshatriga 28 In his absence the Chief Jil; 29 His qualifications 30 Other supplementary authorities 31 Sadhyap&la—the Court Steuard 32 Tribunals their varieties 33 Their relative jurisdictions 34 Court Building its position and construction ’ King s arrival in Court and Seating 35 36 Result to the Judge for a decision 37 Responsibility for a wrong decision 38 Responsibility of the Judge and of others also 39 Penalty for the Councillors ete 40 41 Penalty for fraud ecorrup- tion etc ’ Vow of Yama 42 Dharme-Sastra and Artha-Sttra 43 Rule in conflict of 44 47 Extreme care required in investigation 45 Local Usage what 16 13 64 Court days 48 King should not start proceedings 49 Exceptions—bis special jurisdiction 50 Chhalas and other cases 50 51 The Prakrtis 52 Order of business in a trf-? veif LAW OF ARREST Page ‘Arrest, when may and may not be made 53-58 be broken 54 Preliminary inquiry by the Court 56 Plaint to be examined and determined 87 Issue of Summons 57 Defendant should appear » in person or by a deputy ” Who can be a deputy? . Who », ? ¥ Who cannot be » f Against whom summons should not be issued ? 59 Persons summoned must appeir 60 Excephons For serious matters he must appear in person 60 Penalty for noneappearance 61 What are Subhya Causes ? 60 Security to betaken 62 ‘When security not possible ? ” Who are, and who are not acceptable as sureties? 62 The right tobegen 63 The Plaint Egsentials of a Plaint 64 Faults to be avoided » Details of a Paint 65 ‘Their importance discussed 66 Their use Gi Faults of a plaint 68 Of the faulty plaints 70, 71 The Answer Unacceptable pleas 69, 72 Exceptions 7. Additions to when acceptable 73 ‘The tinse when to be given 74 Time, when to be allowed ? a How much tine ? 7 Essentials of 7% Four Varveles " Res Judicats 78 Essentials of the varieties 78 Inadmiasible answers 2 Mixed pleas Page Combinations of pleas BL A hina tigant 83 a» varieties of hinae a4 one avoiding a trial 85 Penalty for a Afna 86 Results to a Alna 8? Compromise — when permizsubles ? 89 Pralydhahfa - meaning of 90, 91 Evidence - Human and Divine 92 ‘When Divine permissible 93, 95, 97 Modes of 94,95 King’s decision final 98 Evidence - varieties of 99 Documents ~ varieties of 100 Royal Edict forms of 102 Jayapura 103 Paschitkéra 104 Aynpatra 105 Prajiipatra Details of the contents of these 106 Peoples’ documents (La shiha) 107 Varieties of 108 Chiraka Svahastam, Upagats Adispatra 109 Krayapatra, Smdinpatraka 109 Pikuddhipatra, Vibhagapatra . Abhyupagata Sthitspaty 2 ” Dasapatra, Redtekhya ” Debt discharge 110 ‘When another document necessary ? ” When another document not necessary ? Hi Examination of documents UL Evidentiary valueof ., 112 Invalid documents us 1 attestations " Defects, when and how to be exposed 114 Mode of proof 115 « invalidation 116 Royal Deeds; Sdsana The execution 117 Force of Possesson 118 When no evidence, orders to be resorted to 119 Punishment for unfounded charges, 120Page Rolative value of documents 120 Effect of inaction 121 Result of execution 14 Possession 127 £82 Relative value of evidence 122 Posgesston and document 123 tills 125 126 Possession whith bas potency LW Essentials of possession 128 Legal possession 129 Compliments of Long possession ~ what 1s? 131 Proof of title, where necessary 192 Mere continuity not enough 133 Possession for generations 134 Possessions which cannot support title 136 Proof of trtle at least once 187 Possession for more than sixty years 138 ‘Witnesses 138 Characteristics of 139 Their number Even one may be sullictont 140 Limits of this rule 141 ‘Who cannot be witnesses ? 142 and why ? The Aptar 14g The Samabhayas 144 In extreme cases 15 Exception 146 Reasons Mz Kinds of witnesses 14s Witnesses not made—A Aria 149 Incompetancy of witnesses 150 Afrtantara witnesses 151 Grounds of preference 152 Shifting of the mght 153 Exhibition of wituessas Faults of witnesses to bo exposed 154 When 156 How and to be oxposed 7 135, Testing of witnesses 156 Who are admissible and not admissible as witnesses ? 137 Exhortution to witnesses 158 Truth extolled 159-160 Result of untruthfulngss Affirmation of witnesses 161 Special rules for Var ae 162-163 Recording of evidence 168 Mode of 364 m Page Exceptions to the above rule 165 Deposition of witnesses Statements which are worthless 166 When the witnesses testimony should be exact 167 Witness declining to give evidence 168 Penalty for not giving evidence 169 false evidence 170 Variations of Penalty WL How to be adrnints ered 12 Seducing a witness 173 When even a single witness would be suffierent ? V4 Cases in which a decision may be reached even without a witness 175-176 Ordeals Generally 176 Kinds of 7 Sursi aka 178 Cases where It is not necessary 179 Kosa 180 In petty cases YL Nine Ordeals in petty cases 182 Ordeals 1n terms of coins 183 Tables of measures 184 Ordeals according to the quantity tnvalved 185 Values by regard to Viurr us 186 Mode of affirmation for the Varn 137 Gravity of offences indicted! 5 the quantity 188 In serious accusations 189 Offences of differer t degreos 190 Ordeals according to the castes = 191. — _ tothe nature 192 Ordeals throish Prevy 193 Ordeals by regard to beasons 144 Places for ordeals 195 The Balunce (Dh its) 195 Its paris 196 The posts arches etc 197 General rules for ordeals 498 Invocation of the Deities 19g The details of worshiy 200 Putting up the balance S01 Holding it— 202 After the preliminaries 303 Seating on the bvlance ind after 204 Test of innocence or guilt 200 When regarded as innocent 206Page Ordeal of Fire 206 The Manilalas 207 ‘Tho Shnti Homa 103 Farther procedure by the aceused 209 Marking of the hand, 210 Inyocation of the fro 2 After the invocation 212 After throwing down tho ball 213 Inspection of the palm 2k The test of innocence or guilt 214 Ordeal of Koss 215 Daities to ba resorted to 216 Intervals for awartang the result 217 The Rice Ordeal 218 Procedure, the text 219 The Heate:t can—~Mave 220 Ploughshare—Phala 231 Dharma and Adharma A282, 223 The final decision 223 Jayapotva—Decree 3 Modo of execution How much to be compelled 226 Adaussion after gemal 237 Varmtions according to Varnis 228 Yruit of + regular trial 23 About penalty 230 Varieties of penalties 231 231-232 Special rules Special rules regarding branding 233 Not applicable to Ksbatriyas 133 and others 3 Fourfold punishment 23 Who should be banished ? 234 Page Special rales eegarding elders ete ad Mitigation of penalty in certain cases 235 Fines in terms of Sabasis 236 Purging of the sin by under going the sentence 237 Transactions which should be set. aside 238 Responsibility of the court, parties and witnesses 239 Powers of the Tribunals for u 0 Review What transactions are Invalid? 241 Who ara not indepandent ? 242, 244 Who can rescind ? Transactions which are valid 243 Agents actions which are binding Transactions by persons under incapacity aad Transactions by regard to the order of time 248 Lost pruperty found 246 The time mts The hangs ehargos 247 Rules m regard to animals 247 248 Troasure.trove When the owner ts notknown =. 249 When ptoperty ts taken awiy by robbers Ho The kings respovsibilty 2 List of contentsSMRTI-CHANDRIKA COMPOSED BY DEVANNA BHATTA Book 11—Vyavahira-Kandam Bow to the prosperous Ganes. Bon to the prosperous Sarasviti Bow to the revered Gui us There, in the Vyavaharakanda, First section—Parichchhedah To the Lord of Sarasvaty, I offer salutation, to the Lord of the Goddess of werlth to the Lord of Umi, to the Lord of the laminanes, to the Lord of the Gams, to the sages headed by Brhaspat: At each step committing errors in spite of the existence of Pradipa and the Itke for the use of the sight of the seas, this Moonlight 1s heing expounded Now the Vyavaharakanda is begun There, first the nature of a Vyavibara 18 being discussed There Brhaspat’ ‘ Men conducting entuely according to ( the dictates of ) Dharma im the past were free from (the guilt of domg )hum , for those overpowered by ( the passions of ) covetousness and hatred, has been declued a legal proceeding The meining of this has been expounded by Narada? When men entirely conducted themselves according to ( the dictates of ) Dharma and were truthful, at that time there was no proceeding xt law, no hatred noi even jevlousy It 1s when the Dharma vinishes fiom among men that a legal proceeding has been declared The meimng is that among men + proceeding relating to the pryment of debts and the hike has been declared to be (4 proceeding ) at law To that effect also Katyéyana* A yndicial proceeding admimstering 1 aa—wiget Here theres u play upon the two words unqdta and wiraiart The author says although there are lights, and even fashhghts (qfq) on this subject strll something was felt to be wanting and therefore the moonkght ( qa) 2 Intr Verse I 2 3 Thi definition of KatySyane centres the rdea of Vya ahdra in a proceeding at law Yor a detailed analysis of this term [Vyceahara sea Note 1 on p 632 Goll Vol IH where its Iitersl meamng and severs! aspects have been set out sire brings this out an his comment on ih s toxt of area thas winrar warct ane wat: THAR stant Aah = om wane at Fate StrenzrnrTaerTAes oF a aaa ara yA ™ 1w ae Wat 1s Vyavahdra? Jan, Wherein upon an infringement, the point is estubhshel with effort, and thus which has the establishment of the point at issue as its lists, 1s called Vyavahara”” Thisis the meinmg The thing called Dharma which 18 accomphshed by truth telling non violence constancy and the Ihe efforts, and which when infringed by causes such as vvanice rrshness and the like, where e g in (a case of) recovery of + debt, for the purpose of securing one’s money, as also 1n cases of 4 contrct and the lke, with 4 view to avoid other Dharmas where the administration of law 1s made, there the dispute among men which has for tts basis the pomt to be established, 1s called Vyarchira" Hence also Harta W herein one’s property 1s obtained and stmalarly another's Dharma is avoided according to lan, that 1s called Vyachira ' The meaning 1, the dispute where (the right to) property 18 demed, and in the case of heretics etc , disputes regarding the infringement of one’s own Dharma, also 1s Vyatahdra Tt must not be supposed thit 9 trial lhe that of theft, violence ete , would not be a Pyavah tra since siys Yajfiavalkya! “Tf oneimyured by others ina way which is 4 violation of the (laws of) Smrtis and usige, informs the king, that indeed becomes a (fit) subject for 1 judicrl proceeding” Katyayana also “Ifa teicher strike in anger + pupil without the birch and extreme paim 1s caused a complunt may he by the father on behalf of the pup! Brhaspatralso “* When the master prys wages to the workmen employed for domg a work, and if the workmen do not perform, there a dispute starts Or, where any one does violetice, ar does not profer a thing wine has to be Pact 2 given, these tno indeed, sre occasions for a dispute , of the two the detuls are manifold” Uéand also “Having in mind a certain object, when one lrys an information before the king tnt has been declared ag the cinse for a trial of the eighteen kinds of disputes * Thus the meamng im substance of the texts of Yun alhya and others should be understood to be, that a dispute in rezard te any one of the eighteen varieties of topics 1s & yudicrl proceeding (Vy aah ira) Hence also Narada?t Recosery of debts Bailments, a Jomt undertaking, Resump tion of what was given Non service after acceptance of duties, Non-perfor mance of work for wages similirly also Sale without ownership, Non delivery after sale, Rescresion after purchase, Non performance of 4 con tract a Dispute Relating to land hhewise, Relation betn een Ven and women; Share of a Heitage, Heinous offences Abuse Assinit his similarly been 1 Gb is 2 Intr 18-19Dinsions of Vyarahara Debls stated, Gambling and the Miscellaneous, thushas been stated to be of eighteen parts’ The meaning is that a proceeding which has for its sub ject the Recovery of Debt or any of the eighteen topics 1s a judicial pro ceeding (Vyarahdra) Nor should it be said that by revson of the other topics such a8 a Deposit and the like having been stated the expression eighteen would be contradicted, since the same Author’ says“ The farther divisions of these aleo amount to a hundred and eight , by reason of the multifariousness of human transactions it 1s declared to have a hundred vaneties’ Katyayana also ‘By reason of the eighteen titles with different charvcteristics (these) are of eight thousimd” ‘With different characteristics’ 1 e baying different objectives to be established By this 1s stated im substance that judicial proceedings also are of eight thousand different varieties. The two expressions ‘One hundied and eight’ ‘Exght thousand,’ are intended merely to demonstrate the numerousness, and thus there 33 no contradiction Thus in the Susrhchandnka, the consideration of the Characterssties of Vyavabara Now the Description of the Exghteen Titles~Ashtadasapada Niripanam Thee the Characteristics of Recovery of Debts The varieties, morever, some have been pointed by Narada? ‘Which debt must be pad and which may not be pad, by whom, where, and in what way to be paid, and the rules of advancing and of recoverm, (loans) are sud to make up the (title) Recovery of Dibts For purposes other thin gambhing and such other censured purposes, the debts incurred by the father or the like must be pud For the mamtentuce of the family or for a similar necessary purpose a debt incurred by the father or the lhe must be paid By the sons, son's sons and the like (who aie) under an obligation, after the penod of minority, by the process of doubling &e, should be paid allthat Likewise, reeeptance of a pledge and the hike, procedure for the adsance of mone}, as also the process of the recovery of the debts such as by stiges, 2 title of law im which these are stated, that title 1s called ‘The Recovery of Debts , this is the meaning OF the second ? title also, the Same Author * states the characteristics and the hinds ' Wher. 1 man entrusts any property of his own tonnother 1 lotr 20 2 chia 3 oa¢ arGT, Bailment 4 ching 10 15 20 3010 do 30 Ralments, Pledges de mn confidence and without * suspteion, tt 1s called by the learned a deposit— a Caistinet ) title of aw That, where while bung wn kra seal property as deposited without being counted or known, should be known as an Upamd):, whereasit 1s known as Nikshepa when (st 18) conntid’ The meaning 1s that the difference between the Nidshepa nnd the Upanidhi 18 connected with their bing counted and not counted OF the expression ‘Not Known’ the meaning his ben expounded by Brhaspaty “That which has not ben described, 1s covered, 19 not measured, 13 not exhibited, and which is marked by a seal and has been made over, ( that } has been declared as Aupandhita (ofan Upanidh:)” ‘Has been made over t ¢ into anothers hand So Page 3° also Yayfavalkya? ‘Property which being placed in a box is delivered into the hinds of another without being described, 18 called an Upaved/i—a deposit it should be returned a the same condition’? ‘Box's ¢ some pot for holding the deposit, such ascashet or the he Hence alco Narada? “¥\ here money coveredin another object, and which without beng lud open is pliced im another s house, that bailment 1s declared asan Upani ia = Whereit is deposited not characterised a3 above, that 1s called 4 deposit, so says Brhaspals “Where out of fear of the King or the robbers, and also by way of a fraud awunst the déy idas, money 1s deposited at another’s house that 1s declared a Ny tse deposit’ Katyayana* however, mentions an exception to this over for purchases, or deposited by one in 2 journey, or aga chaige or in An Yutas or Yéehta®, or money uyanced os 4 money lender, bas been declared to be an Upamdf: ' ‘Purchase’, + ¢ asamews for making purchase ‘Deposited by one in 4 journey , hee the expression ‘one im a journey’, 18 mdicatise, by implication of ‘one about to set out on a journey", ‘a chaige', te a pledge, Anz chitam, male over for giving to wnother, YVachtam, another s property such as ornvments ete brought over , ‘advan Money made ced as a money lender s ¢ made over to another for ogricultural asyperteane, the bbe. 1 stata 2 Ch I 6a 8 Ch 16 4 Seo also Yajnavalkya UF 67 (2) p 870-72 6 apaiga—1a a deposit made by the bailee fo another to be handed over to the original depo iter (See Uetdd Aavd p 840. 27-90) 6 aVfi4—Clothes ornaments Xe borrowed on the occasion ofa marriage or the like festivities and agrecd to be roturned Of Commadat em of the Roman LawPartnership Gifts and ther Resumphon The Deposit thus deseibed with jts kinds 1s again of two varieties so says Narada’ ‘That, moreover, bas been declared to be of two varieties , having witnesses and another hhewise , the return of this 1s ma similar manner , there shall be proof in case of 4 digpate” ‘Proof + ¢ by ordeal Similarly the Thied title also the chaactertstics and varieties also have been pomted out by the Same Author? ‘ Where tradesmen or the hike others combme together and enter upon 4 transaction thit 1s known as a trading by partnership—a title of law’ Tradesinen (in) 2 mercantile transiction officating priests,{at) » sxerifice igriculturists, (for) cultivation, gold smiths and the like, (in) 4 work of art, dancers ete. (for) dancing or thelike thieves etc (for) thieving or the lhe where (these) combine together and carry on that tiade ete, being carried on by 4 combination— by reason of its derivation viz that with which afte: combining together, they start up i ¢ work together —it 1s the title of aw called the trading by partnership this is the meinmg ~=By “the expression ‘Tradesmen 01 the like, itself, its varieties hive been indicated Likewise of the Fourth title iso the characteristics and kinds have been indicated by the Same Aathor> W bere one wishes to take bach a thing which be has not properly bestowed it 1s called a Resumption of gilts a title of law A transfer in which money which has (already) been pud 13 to be taken bach on account of the thing having been returned owin, toa fault of the artisan—a transaction in which occurs the non delivery of 4 thing given—by this derivation itis Non delivery of whats ghen—a title of ln—thus is its liter meaning Also without any fault of the artisan or the hke where there is non resumption + ¢ non rescision ofa given thing—by this derivation non rescision of what 18 gisen—thus ts its sense sygmificance Haying thus stated its twofold division accord nz to the Iiteral and reil meanings the Author‘ states its fourfold diision by regard to things which may be given and may not be given, as also by regard to their being the objects or the agents of the sct = ‘What may bk given, and whit may not be gen valid gifts ant any vhd gifts, thus the law of giftsis declared (tobe) fourfold is judicial affairs What may be given’, the thing which can bring about the completion of an unprolubited (a 1 chine @ ch mn 3 ChIN 1 4 Ch Ive 10 do 30 35we 10 lo 35 Breach of Contract of service Non-payment of Wages donation , its opposite is what may not be given ‘A valid gift’, ¢ € whena gift has buen validly made, which cannot be taken anay, while ‘on invalid gift’ as that which can be taken away The meaning 1s that thas by these four ( variettes of) things which ny be given and which may not be given and vahd and invalid gfts, the mode of gift, 1 ¢ the process of gifts should be known to be of four Kinds in judicial proceedings Paar i* Sumilarly, of the Next title also the characteristics and linds have been stated ' ‘ If one who his undertaken service, does not render it it 18 called a Breach of contract of service, 9 title of law" The meaning 1s, that the act of undertakin, to perform the commands of the preceptor ete , by « pupil or the like who 1s desirous of rendering service, ind its non performance, 1s the title of law known as Non performance of service after undertaking it By the use of the common term ‘he,’ the five fold variety of this title 1s evident as it 181m connection with the five hinds of servants viz 2 pupil, an pprentice, % servant paid by wages, a worker under vcontract, ind a slave, and so a separate classificition has not been pointed out by hain By Brhaspati, however, 9 maltifarious ¢lussification has been pointed out “OF many varieties has beca declued, and according to the difference of caste, duties acquisition of knowledye and the payment for the work, of four kinds, in each of these the difference in proof his been declared The Vedic knowledge 1s the cause fora pupil todoservice, artistic hnowledge for an apprentice, and work and wages for s hired servant OF the Next title, the characteristics and kinds hive been stated by Narada? “A. series of rules stated in regard to the payment and non payment of wages of pud servants thatis called Non pay ment of wages, 0 title of law? SOF pud servints,’1 e of those doing woth for wages, ‘of remuneration’ 1 e of the wages, series of rules regarding payment and non pryment 1 e for such 1 one should be pud, for sach a one should not be pud, even if paid and to be taken bach from o particular hind, at times a double to be trken bich 9 title of law in which such and the lke rules have been stated, that by reason of ity derivation, viz, of wages < ¢ of the remuneration, non pryment (¢ ¢ non. discharge or not performmg in accordance with the agreement) 1s the Non payment of wages » this 1s the meaning By this also by reason of ¢ yanety of points such as what should be given ind the hke this title has been stated to be of a multifarious character. 1 ohvil 2 Ch ViiSale without ownership Non-delwery after sale Rescson of purcl ases In the sme way he! states about the Next title “When a thing hept as a deposit, or the property of a stranger lost (by him), and found (by another), or atolen articles are sold bebind Ins back-~1t should be known aga Sale by other than the owner” “ Behind the bach” 2 ¢ of the owner So also Vyasa“ When a thing which was borrowed (as a Commodatan)s a deposit recetved for being made over to the orrginnl depositor, 2 thing accepted as a deposit or property which has been stolen from another, 13 sold in the absence af the owner--that should be known «8 a Sale without ownersmp’ ‘In the absence of the owner,’ 1 e¢ when the ownet is not neir at hand In this manner should be observed the characteristics and divisions of the Next title aleo To that effect Narada?“ Where « commodity has been sold fo + price and 1s not delivered to the purchaser, 1 1s called Non delivery of 4 sold article, a title of law.’ QE this, moreover, ire different) kinds by regard to the commodity for «ale, so the Author? states the diisions ‘In this world property 1s of tno kinds, immovable and mov able likewise in the rules regarding sale and purch se, all that 1s called 4 vendible property The rule regarding delivery and non delisery of that» however, hag been declared to be of six varieties by the leained (thus) + (what 1s sold) by tale, by weight, by measure, according to work «ecord- img to its beauty, and according to its splendour —* By tale,’ such as the betel nut or the lke, ‘by weight, such as asafwtida or the lhe, ‘by measure, such as by Audata ete rice and the like , ‘ according to work,’ te by carrying milking ete the horse, a buffalo or the like to bewnty, such as a prostitute etc such as a jewel ete ‘according ‘according to splendour, 1 ¢ lustre Thereafter the Author* states the characteristics of the Next title “Where « purchaser after having purchased an article fora price, does not much approve of it, that 18 termed Reseision of Purchase,’ a title of law ‘Does not much approve + ¢ does not much hike it after deliberation Takewise the Author® states the exposition of Paar of the Next title The (general) rules settled among Piltancha Nazgamas and ihe others are called 4 com. pact (Samaya) , Non transzression of such a compret, that 13 declared title of law > 7 ehand is, such as the A” hapanakas, the Nagamas carvan loch ving 2 ch Vind — 4 ChI¥I Ss ChxX 1 ° Gh VIE tos 7 10 15 20 40 35106 15 20 30 3a Non-performance of a Compact Boundary Disputes or traders By the use of the word Adi, ‘and the like others,’ are included, the associations of Britmanis lewrned im the three lores, corporitions: trade guilds, peoples’ associations, of villagers, towns ete , of these the post. tion is to be determined from their settled rulesz ¢ compzrct , of that the nop obsersation--1 ¢ non tiinsgresston that 1s the non transgression of 2 compret The non-performance of thet by the inverse {method of) characterisation, ike the meimng of the word Darsa (ad), the non transgression of 2 compact--a title of law, this is the meaning. Breach of contract 1 the other name of this title, is well kuowm and so has not been stated The Next title also be' expounds ‘ Where the determimition of the boundary of a water embankment or a mound disturbed by bemg broken into ot unbroken is made ind the rights over fields are in dispute, that title 1s called the Land dispute ’ Water embankment’: ¢ a dam for a waterflow , ‘a mound,’ a region determined by petty embankments, ora field merely Boundiry,’ 1 ¢ the terminal powt of a field etc ‘Broken into + ¢ broken through by 3 furrow or the hke ‘Unbroken,’ z ¢ the entire place, « dispute in which the determination of the titles of these in reeird to the fields takes place that dispute 1s 2 Land dispute » this is the meaning That moreover, is of six varieties, so svys Kityayana “ Excess or deficiency as to a part, existence or absolute non existence (of the right itself), possesston without previous possession (by any other), and a boundary, are the six causes that leid to 9 dispute regarding land The meaning of this 1s beg strted by a detailed discussion In regard to a certain portion of land ad:nitted (by all parties) where the dispute is whether there 1g more land than thit or not, that 1s(a dispute) mm regard to excess , for an assertion that a puticular land 1s not yours the answer that so much land 1s mine, 19 n regard to less’, where to am assertion that ‘1n this hind there as a portion of mine the reply is ‘no’ at as (a dispute) ‘in regard to the existence , where, to an assertior ‘ here you have no share,’ the reply 18 ‘ves, there 1s,’ 1t 13 (1 dispute) in regard to non existence Where, to 1 assertion’ my ‘art mt yu PUSes UN WET TL “was never before in jour possession,’ the answer 1s ‘there was certainly my posses sion before the possession ofany other’ itisa dispute in regard to ‘posession without pres 10us possession, where, to an assertion, ‘ this boundary 18 of my land,’ the reply 1s, ‘no, 1¢ 1s a dispute originating in a boundary 1 ch XT1Kinds of boundaries Parkition Sédhasas That, moreover, 1s of as many binds 4s there ue of a boundary That classification states Narada’ =“ One having a flag mwh one marked by the fish, one hLnown by a deposit, one which 18 undisputed, and one created by the king’s command, thus a boundary 1¢ known to be of five kinds *” ‘Having a “flag mirh,’ 1 ¢ marked by a tree or the Itke, ‘by the fish,’ te by water, + Lnowa by 9 deposit,’ + ¢ contaimmg hush ete, deposited after digging , ‘ One which is undisputed’ 2 ¢ which was created by the mutual agreement of the two disputants, ‘crested by the king’s command,’ te made under the king's desire, Now by the Same Author? has been briefly made the discussion of the two Next following titles.“ That title of Jaw im which the legal rales for women and men als) residing marriage and such other relations are stated, 1s called ‘the Mutual relations of women and men” ‘ Where?a partition of paternal estate and the like 1s instituted by the sons, 1 1s called by the lewned, partition of Diya, a title of law’ In both, by the use of the word %d ‘and the like others, itself, ther multifarious sariety has been dicated , ‘by the sons’ 1s imdicitive by implicition of the diy das Of the three titles next following, however, 4 discussion has been made only briefly* ‘ Whatever is done by force by persons inflamed with ( the pride of ) strengthiscalled 2 Sdhasa sahah means force in this world’ Whateer, ¢ g taking anay by force common property, or the like act To that effect YAytavalkya > Pacu 6* “When common property 1s forcibly carried away that 1s called Suhasa The use of the expression ( deprivation of ) ‘common property’, 1s indicative by imphievtion of man- slaughter and the like also Hence also Brhaspati ® ‘ Manslaughte1, theft, assault on another s wife and both species of assaults, thus, Sdhasa has been declared ta be of five kinds = Thus is the multafiriousness of this title which 1s state by the expression Whatever in the defining verse Narada? agam states three vauieties ‘That agin is declared to be threefold in the S ustras-—-viz_(Sahasa of) the first, muiddlemost, and the aghast deyres , ute defimiaan has haen. stated separately” ‘The defim tion also has been elaborated by the Same Anthor® —‘‘Destroying, reviling, 1 Also citedin the Mitakslara as of Narada, bub not found 1m that Smrta Beep 1149 note 2 cb XIL1 3 Ch SUL 1 4 ChxIVi 5 GhIl 230 p 127% 6 Cited Vyawahara Mayukbs 7 Ch XIV 3 8 Gh XIV 46 10 15 25 30.4Q 10 To 2a 30 Vilpdrushsa~Abuee , ats vancties disfjurmg on otherwise (injuring ) fruits, reots water and the lhe, or agricultural utensils, 1s declared to be a Sthasa of the first degree (Inyuring ) an the same way clothes, cattle, fool, drink, or household utensils 1s declared to be a Sthasa of the middle most degree Fall ng by means of poison, weapons, or the the, decent assault on another man’s wife and whatever other (offences ) encompassing life (may be imagined ) 13 called a S thas +s of the higher degree ‘hailing’ Vy yvédana te of sanious (tatadh ian) difhenltiies (ujadim), by means of porson ind the hhke, apad ton the menrrng, 13 Py Ipadanan + Likewise, the nature of Abuse 1s stated? “Abuse language couched in offensive and violent terms regarding the native countiy, caste, family and so forth (of a man) are termed tuse’ That language which nsinuates an recusition arunst one’s country de and which in its impliertront ts hikely to cause mitense para, that 1s (called) Abuse. That evenisof three kinds so says he * ‘ That again ts declared to be of three vaniettes according as itis ( Neither a) cruel, (AN la) decent o: (Zn ra) ship" He5 states the characteristres of Nishthura and of other hinds ‘ Abuse combined with reprovches should be reguded as Ar /thura (cruel), couched im imsulting language 13 Ida (indecent), the lewned call an abuse Zivra ( sharp ) by which «man is charge} with an offence causing expulsion from caste”, e ¢ ‘Tie upon you fool, villain’ and the bike harsh reproaches insultmg, by 9 sign 1m regard to 9 sister ‘causing degradation such as you area wine drinker’ or the Ithe Soalso Kityayana “When one attacks another with ( words indicative of ) the organs, are marked 48 bad, erther of facts which have or hive not occurred, that language has been declared by the wiseas Ne /¢hura Teferrmg in speech im contem phble terms through anger to the usige of the country as well as of families, that has been stated by wise men ag (v/a) indecent The speech which connects one with a Val pitala as well as thi which causes temper o1 batred, or which involves a dezradation from caste, that speech however, has been hnown as ( Zura) sha p’ “Bibaspah, however, here The meaning 18 that Vyacahdra 1s 2 decision reiched in accordance with legsl pimeiples and in conformity with the plant answer etc ‘ Whatever 1s practised by one whether it be accordmg to Dharma, or not according to Dharma, (but) always in conformity with the usage of the country, that indeed is Chartira (custom) ‘The meamng is thata decision following that 1s also stmlarly dectared ‘Without bemg in conflict with the principles of justice, as also with the observances of the country, that law which the hing ma} promulgate that Royal edict 1s according te law This is the meming of this A deetsion which Ins been reached by the king’s mind only, (bat) which 1s not opposed to any other (source of) authority 1s called the Royal edict Here, of each kind Brhaspati states two further vaneties “Fach one bas been declared to be of two varieties by the wise by reason of a difference In 1 Ry —aarguiaenz ae age TETIAN TH RAreerraay «Mtr 28 2 fant —yreceraferngnt a ayer + $9 3 Intr 10, 4 The same Author explains these thas; ag eh rn oy coreg WHS | Te AEC ety TR He , 3 Bod 10 3018 10 15 20 Tis vartehea the mode of proof” The twofold charister also has been pomted out by the Same “Where, after carefully considermg the point at issue, It 18 deliberated upon skilfully, and has been tested by (statements on) oaths, that has been declared to bea decision according Pact 11* to Dharma Where the defendant adits, such a dect sion 18 legal, or that which his been properly tested by ordeals , such a one has been declared to be the second’? The meaning 135 that what has been made along with: ¢ 1 accordance with principles 1s the first kind of decision called legal Without recourse to the principles that which 1s declared upon an admission of the claim in the answer, or 13 tested by ordeuls, such is the second * Where a decision has been reached by regard to the mens of proof a chicanerous answer beng regarded as ‘no answer,’ that 1s declared as the second” The proof here contemplated 1s human testimony, that which 1s decided by metns of an ordeal bemg regarded as coming within a Dharma category. What 1s decided by inference 18 ealled C/aritra, in accordance with the state of the country, 38 the second hind declared by the adepts im the Ststra ’ ‘ Inference’ + ¢ based upon a sign such asa burning faggot mthe hand and the hie “That decision, however, which 13 devoid of proof such 4 one 1s called the Royal edict, so another 1s stated tobe by reason of its bemg unopposed to sésira "” The meaning of the expression devoid of proof’ has been eplained by Vyasa “A document witnesses, and possession, thus proof his been stated to be of three kinds in the smriis The wise regard inference, as well as logical deduction as the cause The usage of a country established in the past 1s called charira Truth bilance ete 1n sapport of the pot atissue are known as oaths In the absence of these, the wise regaid the kings command as 4 decision’ Indeed 2f it be so, then the text of Narada, viz ‘the eth succeeding supersedes the one preceding becomes inconsistent as a decision based on principles being par excellence the best, the one preceding would supersede the one following, and by revson of the text: of Yasavalkya’ “ After discarding all crcumvemtiar dhe dune vil? cau ulypures -eeorulay oe the actual facts’ The answers, true, such isthe generalrule but m some matters the one following does certamly supersede the one preced ing, it 184 regard to thitis this text of Narada Thus for example, where by a particular member of the Kshitriy or other varna, has been 1 Book It 19Vyavahdra Chanira Royal Edict committed the offence of contacting or the hike in regard to the wife of the king or the hke and having done it such a one gives a demal through fear of life and witnesses also ave ated , these too when questioned by the king intending that this man may not be puntshed with desth mabe a false statement that ‘this man did not do the act, then one whohas committed an offence has not been fixed with it, the Dharma 1s contradicted by Vyarahéra , but such supersessio1 of Dharma 1s proper also asa false st tewent by witnesses has been permitted by the rile? ‘ Where men of the (four) orders are (hkely) to suffer capital punishment Where, moreover, % certain person such asa cowherd or the lhe 1s charged by some one that he has had sexual intercourse with another mans wife and that there are witnesses, and he replies, ‘ this statement of the witnesses 13 true still also Tam not punishable as I have done ths on the strength of chariira or usage and this has been entered by the king in the book then Vyatahdra 18 superseded by charitra, as the punishment which was due under a Vyatahia (9 rule of the law ) bas been negatived by usage ( chanira) Moreover, the supersession by chartira or usage here 1s proper also vide the text A dealing between the members of a village cowpen, town guild caravan or an army, should be decided by regara to usige, so says Brhaspati Usage or ef aritra also 1s at times superseded by the Royal edict, where there 13 usage that no kings officer shall enter into the inner apartment of « famly house and thereafter it became known to the Ling thit a certun criminal hid entered a house and then 4 certain officer of the king was ordered that after entermg the house that accused should be brought, on such an occasion the usage even 1s superseded by the kings command as restrainmgthe guilty bemg a necessary duty the Ling s cornmand has grester force than usage Bearing in mind asabyect of this type 1t hag been stated by Brbasgat. alsa Whee by placing reliance on sistra merely « deaann is made thit should be known to be 4 jad cil proceeding by that also the Dharma 1s developed? By {regard to) the Pace 12* — condition of the country by mference im conformity with the Agama rules also, where 1 decision 1s reached there the legil rule 1s superseded Setting aside the prevailing 1 Yajnavelkya II 83 (1) Collection p 886 2 Amv get, another reading is ANTI 1s 2 ¢ auporseded bv at, 19 10 20- 20 30 3540 o 10 15 20 290 30 The tems explaned custom where a king makes a decision with any authority, that 1s the Ling's comniand , by that usage 1s superseded’ The subject under discussion 1s now being discussed By way of ex- planing the expresston ‘four bases he? says: “ There on truth is bised Dharma while 4 yudicril proceeding (rests) on (the statements of) the wit nesses, Charitra on declarations? reducea to writing and on the command ofthe hing anedict The mention of witnesses 1s mndtcative by impli- cation of Dharma S dsira, 18 also of the mens of proof, other than the ordeals ‘Declarations reduced to writing + ¢ a document He states * the four meins ‘Because the few means of conciliation and the rest are adopted xt 1s said to have four mews" The imports thit an agreement may be reached between the contending parties by means of conetlistion and the like ways The Author‘ states the benefit to the four‘ Because at protects the four orders, therefore st 1 said to benefit four" The ase of the word ‘orders’ (tsramas), 1s intended to indicate the four tarnas also The Author states how 1t reaches four Because 1t affects er minals witnesses the court assessors, and the hing alsa to the estent of a quarter each, therefore 2t 13 said to reich four’ The Author‘ states how it produces four results “* Because it brings about these four, vz (Dharma) justice wealth renown and esteem among the people therefore it 1s de clared to produce four results ‘Because it brings about these four, viz (Dharma) justice, weilth, renown and esteem among the people’ ¢ regard of the people The Author ’ states theeight members or Augas ‘ Because it consists of the king, together with his officer, the assessors of the Court, Suastra the accountant and the serrbe, gold fire, and water therefore it issadtohaveeight members The use of these moreover, we will point out further on The exposition of the eighteen titles and hundred branches alres 1) made in the former section, may be followed here ‘The Author® states the three efficient causes ‘“‘Because it proceeds from carnal desire wrath or greed thereforeit 1s said to have three different causes , these are the three sources of disputes of Iaw ’ + ¢ in all cases according to the exigencies The Author ® states the two modes of plant " Tp a9 sand to have two modes of plaint, because a plint may be ether founded on suspicion or on frct-’ Here also He* gives an examplet ‘On 1 sxemmg Narads Inte 11 Inthis text bas been atated a progressive appreciation of the relative for 0 of the several tiesns of proof Admistions by parties witnesses documonts and Royal edicts seo sahdya 2 qerxry—other readings are Hiei oF mee 3 Intr 12 4 Istr 1° 5 Intri 13 6 Intr 4 7 Inte 15 8 fatr 2¢ @ Inte 27Other variehes at suspicion, by reison of contact with bad people, and on fact at the sight of the stolen avttcle’ Onaccount of assocntton with rogues, thieves and the like bad people a susptcion of theft may occur even in regard to agood min The sight of the stolen arficle br the hke or the trang of a mark of « portion of the stolen thing or actual sight Association with 5 the bad 1s (stated) only as an example Even of the good people though nich, by reason of the assouation » doubt 1s likely to atiseas toa deposit Therefore this 1s not the definition of 2 complaint based on suspicion. The Author! states the two openings— Because it 1s based on the statements of the two litigants therefore 1t1s sud to have two openings 10 Of these, the first compluntis called the plunt and the declaration of the opponent, the Answer’ 1 ¢ in the dispute Opemng: ¢ the desire for the commencement of the sut ‘Lhe Author? mentions the two issues‘ Because it may be founded aither on truthoranerroi therefore 1t 1s sard to 15 Pace 13* have twoissues Truths what rests on true facts Frror 1s whit rests on a mistake of facts Harita also mentions some varieties © Having one bisis arising from two, resting on two and having two results likewise’ Katyayana, however expounds these: ‘The origin of the point to be established what has 99 been stated by the plarntiff non delivery of what 13 due to be given and injury are the two stating causes The Dharmasistra and the Artha Sastra have been declared to be two shoulders and success as well 1g failure have been declared to be the two fruts ‘Bailore, 2 ¢ defeat 25 Likewise, another division even has been pornted by the Same Author also ‘The first complaint the answer the deliberation and the adducing of proof thus it has been declared to be having four feet’ Pratydialitam— ‘the deliberation’ After the acceptance of the Answer (of the Defendant) the deliberation and decision of the Chief Judge and others, as to who of 30 the two contending cisputants should have ‘the right to begin his evidence Rrty?, ‘proof’ documents and such other evidence the adducing of that 15 the portion ‘relating to proof By reason of the point in dispute becoraing the concluding portion of the proceeding, the parts relating to the deliberation and the proof also are the ydicril proceeding and therefore 35 has it been stated that it has been declared ‘to have four feet’ 2 Snr 38 2 Intr 29 ~22 tr 10 18 20 25 Discussed Hence also by the Sangrahakara the concluding portion also has been cha+ racterised as a ‘Judicial proceeding’ ‘In cases of disputes among men for ther mutual interests, tne adjudication of a just claim upon the statements 1s called a judicial proceeding” Some say that the deliberation 13 that portion (of the proceeding) which consists of the exibition of the result decisive of the success or defeat which removes all doubts about time or Wlusory evidence Ja their opmion it is only the number of the feet that 1s comprehended and not the order, as the part containing the deliberation falls to be the last As to what his been stated by Yayfavalkya? “IE at. ( the proof ) succeed, he obtaina success , if otherwise, the reverse’, there also, by the word ‘success’ 13 indicated the deliberative part resulting 3n success, ond notin the form of success or defert, as that exists even in an answer of admsson (of the claim), and as there would be the possibihty of 4 contradiction with the text, ‘Of two feet in (cases of ) admissions Therefore the tert of Yajavalkya has the same import as that of Katyayana Others, moreover, describe this text as having the same :mport as the text “On account of the plat, the answer, the proof, the point to be established , by the establishment of these im order, aa xt 13 cast im four parts, it 19 described as having four fect * In an answer of ‘admission’ however, no means of proof being indicated, and the point in the plaint not being necessitated to be established, there 1s no part contaimmg the pot to be established, and the establishment, and thus there 1s no con- tradiction with the text ‘of two parts in cases of admission’ In this pore of view, the order of the parts also has been pointed out 10 another Sart: “ There, the part contaming the plaint is the first the second 1s the ans wer likewise, the part contaming the ptookig the other, and the fourth hs been dectared to be the decision,” Thus in the Smriicbandrikd the Divisions of Vyavahira Yow the Betermraven of tae Dewhing Anthonty, Muon There Brhaspat: “A judicial procee ling, although one, has been declared to be of numerous varieties by the wise, of that, the deciding authority 1s the king, as alo a very learned Brimana ” Pace 14* — Bribmata, hnown as the Prddiiudka—the chef Judze So mays the Same Author» "In a contested cause, he asks questions, and Tchr sThe Chief Jushee Prégewtka cross questions likewise, sperks suavely, and at first, and therefore 1s called a Prddmvata’ The meaning 1s, that he puts questions to the applicant and the respondent, therefore he 1s Prat , and he declares the decision and with prrticulansation, so 1s Vivdta *, the designation so 1s literal. By Narada also, while elaborating versatility in a Brihmana, ths designation has been pointed by another method ‘One whois thoronghly versed in the eighteen titles of law, and who knows the exght thousand divisions of these who 1s an expert in the sctence of polities and the like, and is a devoted student of Revelations? and the rules of tridition, bh» who examines the (rules of} law relevant to the point mm dispute, and comes to 4 delt berated deasion on the pomt under consideration, 1s therefore called Pradundka” Thus by both methods alco: ¢ by the literal and tradi tonal interpretations, the result 2s 2 fact also has come to be stated Moreover, 1t has been stated directly by Narada* ‘ Asan experienced surgeon extracts 4 dart by means of surgical instraments, even so the chtef justice must extract the dart (of injury) from the lawsuit * “A Brihmana also’ 1n this expression the word ‘also’ 13 mdteative of inclusion of other judges also Hence alsoMam* ‘ In these places, of men carrying on @ dispute intensively by resorting to eternal rules of law they should make the decistons of these’ ‘In these places 1 ¢ under the eighteen titles Kityayana also ‘ A king attains heiven, who myesti gates disputes according to law, with the help of the Chief Judge, the muoister 5, the religious preceptor the Brihmanas and the councillors” The Chef Judge,’ having the qualtiesas stated before One carrymg on with him, is one ‘ with the Chief Judge Tn this manner in expres: sions ‘ with the ministers’ and the compounds should be etpounded im, accordance with the number which will be menttoned hereafter OF amimster moreover, the chartctestics have been mentioned by Vyasa ‘ One should install a twice born manasa munister, who knows the import of all the S’éstras, 1s free from greed 1s expected to speak justly, a Viprs, & veraisle whaler, 25d dexeended una Long contained ‘heredity ¥ 1 gig + frare—He interrogates, tnvestigates and decades 2 yfreq vei —gt—-What as heard, the Vedas the Revelations wiR-What 19 remembered—the Tradition 3 Intr HL 16 4h VIE g > sarq aq-ueat and 7y-fireft—One who 1s m constant attendance w requisition In the poplar usage, hes one of the eight ministers, composts thn Cabinet of Manistors 8 the 23 oe 10 15 202d 1 13 30 The An dja Although the word Pipra wis alrerdy used, the mention again of the word ‘twice born as with the object of mdicating that when a Vipra possessed of the aforest ited characteristies cannot be found a Ashatriya, or a Vaisya possessed of these characteristics may be instilled but not a sidra Since says the Same Author “Leaving aside the twice born, one who investigates causes along with the Vr /alas of such» one, the nation be conies agitated and his power and treasury also become extinct A minister, 1n this, the singular number 18 only mdiative 2s 1t 191m regard to the point under consideration since m the test together with tomnsters and experienced councillors preserving a dignitted hppeirance should he enter the Council, Hall of Manu? 9 rule having been laid down in regad to the entermg inte the assembly with many councillors the specal mention in the expression ‘experienced councillors, 1s with the object of demonstrating that by 1e1son of their yersitihty m the rules use ful for the matters to be disposed of there 1s use for these here Similarly 1m regard tothe Bi thmam also a plurality hasbeen mentione 1 by the Same Author? io the firsthalf ‘ A hing destrous of investigating Jaw suits, along with Brabmanis” ‘ Along with Brihmanys, + ¢ with the Yewned 18 the implication So also Yapilavalkya? “ A hing should admim ster justice along with learned Brohmanas Although ofthesem regard to lewning and the plurality of Brahmams in the evbhd, and in regard to the qualification of goodness there 1s no distinction with councillors still by re,ard to these not being appointe? a distinction from these should be mferred Lor these (t ¢ he councillors) are appointed, hence also Vasishtha* Whether appointed or not appointed knowin, the Dharma, he must speak sucha one utters a divine declaration who follows the Sstra As to what has been stated by Narada * ‘One who has not been appointed, must not speak on any account ina yalicitt proceeding + by one, however, who has been appointed must be deliverel tis opmion witlout any bias towards any party that hiss reference toone who was nnggynntnted and who had banpened to be in revard to another business + otherwise tlere would be a contradiction with the text stated before, also it woul secure the co operation of Brahmanis and avoid a difficnity m regard to the other business 2 Cb ¥YOII 2 Cb ind 3 Not found ia ¥ aor btha, bat seo Norada Intr ILL 2 4 Intr IThe Purohita The Assessors The Purohita ‘the religious preceptor’, however Page 15" — should be one only So also Vyasa, ‘The Jing should anvest a Brahmina from the North devoted (to ins interest ) as the Purohita', one who is accomplished in the study und hnowledge of the Vedas, who 1s noncovetous, and whois truthful Here singlenesats intended just asin the rule? ‘ He cuts the pole’ by reference tothe object aimed at By siymg devoted, the author pomts out that the Purohita should correct any unbridled inclination of the hing in regard to the punishable and the unpumshible Hence also, in the case ofa tians- gression by the King of the rale of pumshment, a penance has been stated by Vasishtha? for the Purohita even ‘If one who has incurred 4 punish ment 1s allowed to go free, the King shall fast for one night foi three wights the Porohita , the Purohita shall observe the krehchlira for a panish ment against one not deserving of pumshment , for three mghts the bing The assessors, moreover, (may be } many So also Narada‘ ! The king however, should select 3 assessors * , religious men of tried integrity, who are able to bear lhe good bulls, the burden of the adoumstrition of justice ’ The mewung is that he should «ppoint assessors fo. the pui- pose of investigating judicial proceedings, by meins such as (of grving them) money remunerition and domg honour to them, and the lhe means, so that these will not deprrt from the established rules im the courts ‘Who are able to bear the burden of the admunuistrition of justice ? anticipating this (question) says YajHavalkya © ‘ Men accomplished in learning by the study 2nd knowledge of the Vedis, who know the law, and who speak the trath should be appomted 4s assessors by the hing and who are also evenly disposed to friends and foes alike These also the Bribmanas only so svys Katyayana ‘ Moreover, he (2 ¢ the king ) 1 Tho Purohita referred to here 1s not the ritual priest of the Royal family It isa special Of er of the Court that 1s in contemplation 2 The maxim hero referrod to 13 the TTFA-WI-Geo Maimamsa V 1-27 (fourtecnth Adhidnewie) wt NL 34 arkand int lomo) Dey th ala in tas ths cating of tho pols has been ordamed , bere acts such a3 cuttiog paring ete bave been preecribed in rogard to the pole Ilo question arises whethar for each ofthese acts different poles are contemplated or these are to bs p rformed, on the oxo and tho same pole, the answer isthat ay all those acts are in regard to the same objet, « One polo only 1s meaxt Bo hore the sovernl qualities atated are to bo conceatrated ag one person 6o thatr¢ 16 only one qi P7 who ts coatemplated 3 Dh 8 XIX 40-49 4 Iotr IW 4 5 wrx members of tho assembly or court 6 Book U 2 a 25 10oO 10 e o » 1 ou 30 Ther number and qualtfteations accompanied by assessors or councillors, who are steady, are special scholars are of Ingh parentage, and who are the best of Brihmanas, who are clever in interpreting the mewunz of Dharma S'dstra, and who are sccomphshed in politics” Here Brhaspats mentions those who chould be excluded “Those who areignorant of the usa.ze of the county, who are unbelievers, or ate excluded by the S dsvra, the arrogant, ingry, covetous or distressed, must not be referred to in regard to a decision’ Likewise, the rule as to their number also the Same Author states “Where, Vipras knowimg the usige of the people and the Vedas, as well as the law, and being either seven, five, or even three, me sitting that assembly 1s equal (an sanctity ) to 4 saenficial assembly Here, 1 should be understood, that in the case of the Chnef Judge and others, by reason of money pryment, these hive only to assist, ag 18 the case with the Raed, but they have uo authority The authority for deciding suits, however, is of the hing only Hence also here by the ex- pression ‘along with the Clef Judge’ and the hke,1s the reference of him alone as the principal, and not of the others The connection with the result also has been stated to be for him alone, and not of the others Like- vase, for not domg it, 2 sin basing been pointed out im the smrti, the per- “manent authority also 1s of the king only, as in the text “A king punishing the mnocent (2 ¢ who did not deserve a pumshment), and not pumehing the guilty (| ¢ who deserved 1 punishment), brings great 1n- famy on himself, and goes to hell” Afrult has been attributed by Manu‘ to the king limself Hence also a rule has been pointed out by the Same Sage? in regard to others thin the king when entering 4 court * Buther the comt must not be entered, or the truth must be spoken, « man who either speaks nothing, or speths falsely, becomes sinful (guilty) * Moreover, « rule has been stated by Brhaspati for the Ling 1m regard to Ins entering the court ‘The hing should investiite into the suits only when surrounded by three assessors, after enterms the court and either sitting +t the head or standing only ’ The meamng 1s ‘accompanted by three assessors only’ and not by one or by two Therefore there 1s no contradiction with the number of assessors mentioned before Therefore it has been established that as in the Rayasiya sacrifice, so un iegird to the decision of yudiaal proceedings the authority 1s of the Ling alone, Moreover, here, by the word hing 1s demonstrated by a secondary implication any one perforrmng the function of a hing such as the prote 1 Ch VIL 128 2 6k VT 1sMeaning of the word King ction of the subjects and the lhe, whether (he be) a hshatriya, or of any other caste and anomted or unanointed, and not a Pace 16* —hshatriya’ only, after (the manner of) the rule in the - Ave ki? maxim under which the word king in 1 Tho Author of the Smriehandridd says that the word hing here 1s not to be taken 1o bo restrictively applicable to the Aghatnya alone, but rt 13 aged as indicative of any one who performs the function of tho King, viz the protection of the subjects ete and that the word hing 13 used here in its secondary and genera) senzo aa indicating one who governs, bo he born a Kshatriya or of anvother Varna, be hedaly anomnted or not etc For the word a7 (Kingship) 13 explained as the function of a aay; and a war 8 one who 1s born a Ashstriya asia asserted in the sfnreghts Nydya 2 sitfzearq—xif means expiation (of sins ) by sacrifices See Jaimini IE 3 3 ATA anata mgraaaeyt: Second Adhikatana Also seo further on, KI 4-3(0-11) (Third Adhkarana) ait Yea-a enFeqaags (4) TaeRABTA (0). Ferny VariaistraA(r2) Bro pages 03 and 653 of Siwirnmer Vo) 24 In the chapter on Rayasd a eacrifico, a sacrifice called 373% -dreghts is slated in the Srutt aRaqaren> Fata Rod aaon | Pale, ea Fp Bata aed, Gargi es A am &e ct “Ho offers n cake baked on eight potsherds to Agoi with gold as the dalyhon? , a. cako baked on eleven otsberds to Indra with a bull as tho dadthind borled rica to the fagyrs, and forthe dalshind a tawny coloured cow of stx yours ete ‘Tho question is whether in thege ceremontes the pstts should bs performed all at a timo (a37r) or soparstely (saz) The reply 13 that they are to to performed at 5 time (421) bevanse there 19 0 (Fa (3) In the same escrifice ocears further the text az mT THA gE Oey Gere yey gem aatonthay aRana tag a7 9s Wise e Ita Brahmans offera a sacrifice, after placing at in the middie ond making an oblation to Brhaspat: bo shoald sprinkle ghee over it, if a Rajanys, to Indra and n Vaisya, to Visvedova Here ma fing placing in tho middle &e ’ indicates oneperformance Tkerola that another text which referstoa epecisl desire ce g gatsraaed AeA Ict ove be made to offer asscrifice, who has a desure for food &c ** ‘Thos there is nnity of parpors acd number which shows that the .feeshts isone, and thst tho aubordinst parts should be performed once for all Tha position may bo briefly put in tha words of Sthara Sedmun thus (1) cay amegta cneszaiet ary is the iecertive text for the nmrz7H In the samo context ccetis (urther thetrxt (2) aregaerersete Thea alse ovcurs farther on the text Q) Prensa ete In regard to there torts, there arieca the question—Do these tests refer to tho Brahmans, Kibatriva and Vaisva as lsving down the condition Under whi h the details—e g xsto bdrhespaty fin irs &e sre bo bs adopted at the Teajaniva, or is the free4fs a distin ¢ sacrifice prescribed * The answer is that the Acorns ivan independent anctifice and apt licable only to the Kebstrivs eute (Fore detailed diecestlon vee grenqea on IE 33)10 to en 30 When one, other than a Kehalnya the Vedre command £ A hing should perform a Rajasfya sacrifice,’ 13 re- stricted to the Lehatriya varma and is the principal object, under its hteral aspect, 117 Lingship is the function ofa king The use of the word king as indicating one who governs has been regarded as secondary in the use of that word by the Aryas such 1s Mann and others, 13 has been stated in the alfred a (top c) Addskarana itself Cherefore, by Brhaspats, the (duty of) entering the court has been pomted out =“ After getting up im the mornmg, and after having per formed the ablutions in accordance with the rules, having duly honoured with flowers ornaments and clothes the el lers, the scholars in Astrology, the medical doctors, the Gods, the Brihmanas and the priests—all these accordmg to thew merits, and after having paid obeisance to the pre ceptors and the like, the leader atthe head should enter the court” Por this reason also the investigation of suits his been stated to be by the came, by Yayfavalkya also * “The king should imvestigate complants etc * ‘ As to what hag been stated by Prayapa + “A hing consecrated by anointment, or a Brrhmana well versed all round, when seated on the seat of justice, should investigate complamts, unperturbed” *Unpertur bed’ Antiéanah: ¢ unarrogintly, this even 1s intended as laying down a command thit an anomted hing should myestigate complamts, and not as probibiting others , for 3n that case there would be the incongruity of restrictive exclusion (Pirisankhyt)? Hence also by the Same Author has been stated thereafter ‘In this manner the Ashatriyas, or the headmen? im thetr own country severally, while in the case of other hings, a leading Brabmam should do (it)’ The meaning 1s that seated on theseat of yustice, free from arromince,the Ashatriy1s and the Samantes should investigate disputes Other hings, however, 2 ¢ of the Brihmana, Vausya or other castes, for the purpose of accomplishing ther duty should always invest 4 leading Brihmana alone as the imvestigator of disputes, ‘As for the alternative course stated by the same Author viz ‘Or a Brib- man well versed all round = thit also is not intended a5 demonstrating the rgbt of. Brthmana but as indicating that without the hing, even a well versed Bribmana o1 4 Chief Judge may investigate under the hang’s 1 Book If 1 2 See note3 oo pages 219-213 Mitskshara Collection Vol If (1) 3 mra—aarigat —those who belong to the nelghbonrhood One living on the border It also means a foudatory prince ascontrasted witha paramount soverelgn anaast Ib also means a leader ¢ g ina village, the hendmanIn hns absence, the Chef Judge authority , as it has been already pomted out ' before that a Bribmana has no authority toinvestigite disputes Hence also Vishnu?“ Or he should appoint a Brihmana for mvestigating dispotes’ With ts amport also, Brhaspatr even “* The king should imyestigate causes or a twice born Chief Judge, by placing before him the principles of justice, and abiding by the opinions of the Sabhyas and the S’detra." This moreover, 18 an alternative course when the hing himself does not Iook into, and then only, To that effect also Manu 7“ When, however, the hing does not himself investigate the causes, then he shonld appoint a learned Bri mata for trying the sats" “Learned,” + ¢ well versed. Hence also Katyayana —“‘ One who has studted one branch of Iearmmng (only) wall not hnow how to decide causes , the efore th» best of the versatile should be appointed by the kings in regard to disputes’ The use of the word ‘versatility’ 1s with a view to indicate other qualities also So alsoit has been said =‘ One who is not hard, 1s sweet, of an affectionate. Utsposition, born of (a good) heredity, farsighted, energetic and nncovetous also, should be appointed by the king im ( the matter of )4 dispute" Katyayana aleo “When the hing does not himself decide a cause, then im sucha ease he should engage + Beihmana who bis mastered the Suciras, Qne who 1s sigilant, well born, ampartal, not likely to create distrust, who ss firm, who ig afraid of the next world, devoted to rehgion 13 industrious, and devoid ofanger “ When ‘:. ¢ owing to absorption in another business, 13 the supplement To that effect aleo Yasiavalkya* © * Unable to attend to the administration of justice on account of other engazements, by a king should be sppornted to work (1n his plice) along with the counellors, 2 Brahmans knowimg all lays” The meaning 1s that on account of Ins be~ ing engrossed in another business weightier than the admimstration of yustice, by a hing not ( being free for )iavestigating causes, with three aseessors only should be enjoined the Clnef Judge and not along with the Amitys or other ininisters Hence also Mana® =“ That (one) shall care fully investigate his causes accompanied by three avsessors only, hay ing entered the leaching court, and ether sitting or stand- Part 17% wg The restriction in the expression ‘neseseors only ssintended toexcinde others, and ‘by three! is wntended to exclude*the numbe of five or seven Woth this very T Rep 268i dhe above (Banskrit p 13 3) 19-20 ) — 2 Ch NPSL B DE p 2 473 3 ch Voro 4 Beck It 3 & Ch NIIL io € Seo Bajambbattip 9 LU. wie Germs Few 1 BeeIsimans Ch, XL S845 Cighth Adbikarana ) Anandasrarca Serlea Vol, 24 p €25, * 29 roy 10 15 3030 10 45 The Pridewhka; who should ths bet import Vyiisa also “Since he interrogates with effort im pursuance of the point in dispute along with the assessors and by means of which he ansestigates, therefore he 1s called the Prddiurala ‘the Chief Judge ' Here Katyiyana +“ Where x Brihmana is not ayalable, there (the hing) should appoint 4 Kshatriya or a Vatsya who 1s learned im law, he should, with effort, avoid a Sddee' A Briimana’s ¢ alearned one To that effect the Same Author ‘ Where a Viprais not found whois learned there (the hing) should appomt a Kehatriya, ora Vaisya knowing the Dharma S'éetra , one should witheffortayoida Sidr.” In the expression ‘Kshatriyat appears to be contemplated a ‘lewned'as has been (the qualification) directed to be in the ease of a learned Brihmana In saying ‘with effort,’ the Author points out that by non exclusion, greit harm would take place That has, moreover, been spoken to by Manu? . “Of king for whoma dra makes the examination of the Jaw, of such a one the kingdom sinks low, tke acowint a morass” Thus even when a Kehatnya or a Varsya knowing the Dharma Sdstra 13 not available,a Sidra should be avoided To that effect, moreover, has been stated by the same Author *~ “ 4 Bribmana who subsists only by the name of his caste, or one who merely calls himself a Bribmana, may be an interpreter of the hing’s laws but never Sidra on any account.’ ‘Who subsists ouly by the name of his caste,” and not one who earns his subststence on account of hus learning and character Vyasa, however, states a fault in accepting a Sfidra,in the post of s minister even ‘Leaving aside the twice bora, one who looks into the causes in company with the Sudras of sucha one the nation will be violently agitated, and his force and treasury also will perish” The import is that therefore, to avoid thts calamity, even in the posts of ministers ind the like, be should exclude the Sddras Lahewise, by way of pleasing the nation, one should have in “the assembly — the company of some tradesmen also, so says Katyayana “‘Attended by a number of tradesmen from guilds, and possessing the qualification of a good family, character, advanced age, and opulence in wealth, and devoid of jedlosy” “From guilds’, 1 ¢ ‘belonging to a group ‘Likewise, the 1 Bee Vyavehara MayukLa Sk Text p 2124 Engh Tr p 5 i 7-9 2 Oh VIII 21 8 Ch VIII 20 4 qemrga —The sufix g7is used to dicate that a person professing or pretending to be or calling himself by a name to which he has no real title op 4% also used in a simular sense e g GEATS IRI My eat: BaratOthers also may assist Same Author mentions their duty also, ‘There, the tradesmen should be invested as investigators of justice Similarly, an accountant and scribe should also be created by the King, so says Brhaspat) ‘ The Bing should «ppomt tno persons as an accountant and a scribe, who know the principles * of the science of words and names, who have studied the lexicons who are skilful accountants, who are pure, and who are acquainted with various alphabets Vyasaalso ‘The mg should appomt an cco mtant whoisan accorplished scholar of the three sections of the science? of the heavenly bodies, who can yield a clear result, and who 1s accome plished in the study and knowledge of the Vedas He should appoint one with vclew bandwnting who can use appropriate words, who Js pure, who can use cleat syllables, who bis subdued anger, 1s uncoretous, and whois truth spexking ‘Who 2s an accomplished scholar of the three sections of the science of the hewenly bodies’, 1 ¢ who 1s an accomplished scholar im the three parts of the science of Astrology wiz Hora? , Mathematical calculation and the constitsted Texts? The qualification ‘accomplished in the study and knowledge of the Vedas’ is intended to establish that the vccountant should be of the twice born class, as such 4 one 1s impossible from among the Sudras nd the like The scribe also, as he igim compiny with um should also be 4 tice born only Hence also with a view to obviate the twice bornness of Sadbyapils the inclusion of a S(idra has been made by the Same Author A Sidhyap da should be appointed by the hing who would bring about the accomphshment of the object to ve estabhshed one who 13 1 heredh- tatily born Sfidra strong, and one abiding by the orders of the assessors’ « ‘OE the object to be estiblished 2 ¢ such as summoning the pluntiff etc the defendant witnesses &c So also Brhaspay ‘Tor summoning the witnesses the Pluntff, and the Defendant and for the: protection, 2 truthful and confidential man should be appointed, subject to Pace 18* the wuthority of the Assessors ‘Summoning’, 2 ¢ inxubag ta came The meaning us that ones ann 1) sepia a? —Borrodails: tranelates Sialled in expoan lng words’ while Maendalik * Who know the principles of grammar 2 sa firnifia—one well versed in Astrology and Astronomy 8 Ba—horoseopy The ns ngofazodieal sign— gm q a rat Maratea, Qa) 4 a¥—s« continuons systematie collection of texts put togather at 10 15 20 25 3032 o 10 45 30 85 The Sddhyapdla—the Court Steward than who 1s born in 4 hereditary lime such a one should be «appointed by the King (to worh ) subject to the authority of the Assessors In this manner these places of decision of a Ingh type have been stated by Manuand others By Bhrgu however, has been stated even the ‘loner type of the places of justice ‘ Bhrgu stated ten places for disputes and five (more) also, by which disputauts having terched 4 state of difference, 1erch 4 decision” These fifteen places moreover, hive been pomted out by the Same Author “The foresters however, should do by those of their own, those of a cartvan, by the caravans, the army men by the amy men, im% town even by the inhabitants of both The familymen, the leaders of carwvans, the inhabitants of towns and villages, adopt a place as desired with the consent of both The Villgers, Townspeople, Associitions, Guilds men learned im all the four lores, members of prrticular groups, families and members of famultes persons appointed and the King likewise” Here the fist five places are for the special classes of men such as the foresters and the like only In a dispute between men established in the form of 2 town the decision is by the residents of the neighbourhood Men of 4 family, leaders of caravans, and innabitants of towns and villages, select 1 place approved of by the unre- pentant plant and defendant The ten places such 4s the village and hike others aie common Gréma ‘a town, 01 a village's ¢ people settled in the form ofa village or town Townspeople’,s ¢ the assemblage of the inhabitants of a town Ganah ‘Association + ¢ «collection of families or under the Smrti of Katyfyana ‘An assemblage of famihes, however, 18 called Gana (Assocation) ‘Gulds’, (Srems) the eighteen lower classes such 28 the washerman, and hike others ‘Ven learned m the four lores," 2 e men sersed in the four branches of knowledge such 1s the metaphysics and the ike The word also’ cAa, in the expression ‘men learned in four lores also’, 18 indicative of a combination of other leaned men with the men learned m the four lores, 1s Pitamaha has piolbited one man (only ) from declanng the law (10 the following text) “Therefore one alone although knowmg the rules of lins should never declare under the law " Varginal ‘members of particular groups’, such 13, the ganas ini the like ' The associations ( (savas), umons of heretics also the Vrutts, and the S’rents, os also those others who are (members) of the combinations Sumthas, these are called the Vargyas , so (siys) Brhaspati" vide this Smrti of Kityayana. The mention of the name of Brhaspatr 1s wath the object of pointing out that this tradition about the Ganas etc was well mown even before The association of the arm bearers 1s ( called } VritaVanehes of Tribunale “The bearers of several arma when associted together are called Vides” so, hwing been stated by the Same Author ulin, families, 2 ¢ the sagotras of the plaintiff and the defendant Aw:kas, ‘of the famihes’, some of the semors among the gotrajas of the plaintift and the defendant ‘The appointed’: e along with the Chief dudge, the three assessors ‘The King’ 1. e along with the Brthmanas In this connection Brhaspatit “Dstablished or stationary, not established, under the (Royal )seal, and under the S’4stras, are stated to be the fourfold varieties of courts , and the membersofthe Sabhis are algo of the sume hinds " The court which 1s held at a place like a forest and the like 18 ‘not stationary’ or established ( Apranediutd ) Generally not being possible to sift to other places and im the case of inhabitants of both the places and the hike, that being absent, it 13 stationary ( Pratishtitia ) In the case of the appointed councillors, moreover, being accompimed by the (Royal) signet, Law, and the President it is Afedrti, under the (Roysl) seal In the case of the hing, however, being controlled by the S’dstra itis S’dstné?. (Under the Sastra) Chis classification, however, has been pointed out by the Same Author “Ihe (permanently) established Pratshthia (Court )s na town , ina village is a moving one called the unestrblished Apratishtut 1, the one with the Royal signet 1s joined with > President and that having the King 1s enjoined by the Sdstras' ‘The Prendent,« ¢ the Cluef Judge ashe has been tnvested with the power of investigating legal proceedings In his hand, moreover, should be given by the King his own signet for the production of the Defendant and others, this 1s mferrable from this (fret itself) There the Pratesh{hit? and Aprateshthut? Court should be caused by the disputants themselves desiring a decision by payment of money, showing respect and the like means, as under the myunction of the Sdsra, in the absence of an iutiation by the hing, there cannot be constituted a Court. The one under the (Royal) signet, and that under the S’ésira also are to be organised by the hing Inmself in the exercise of lus own authority Therefore, there, those desirmg a decision have to approxch him alone, and not to constitute a Conrt (assembly) There, Pitamaha states the superiority of the Cuurt unde~ the Sdsfra over other linds of Courts “The disputes which hid gone to the first Court, whether in accordance with the law, or notin conformity to law, if these resort to 1 Seo Aperarka p 00 Anothor reading 1s swift for aia, WAAL 28 also another 5 33 10 20 25 30MM ce 10 20 1 o 30 35 Ther R lative yuris iehangs Conttruction of le Court Home the King’s Court, thes. refer to the former plaintiff’ ‘former plant’, +e the Cphuntifs) first comphint fhe use of the expression ‘hing s Court’, 1s mdicatie, by an exten led appheation, of supenor Courts Sance the Same Author siya/*"What Ins been decided Panr 19* (by a Court ) ina slhge should go to (the Court yn) the town while that decidet by (the Court in) the town, (should go ) to the King, when it has been decide? by the hing whether 2 good or 4 bad decision there is no resisal of that” Narada" also “Lhe Aula, Sens, Pajaz, an ofheer appomted (by the King ) and the King (tumself ) are established for deciding disputes, and among these cach succecting 18 superior to the one preceding it in the order « Thnsin the Smritchandnka the rule about the Deciding Authorities Now the Law Court—Swadharma Sthinevasthinam ‘There Katy€yana = “That plicess andeed called a Comt of Justice, where m accordance with a consideration (of the rules) of religion and law (dharma “ Therefore, hke Yama the overlord after discarding likes and dislikes, should conduct himself after the manner of Yama, subduing anger and restraining the organs” The use of the word ‘anger’ is indicatwe of ‘avarice’ also For, the Same Author? also “The hing, divested of anger and avarice, should administer justice along with learned Bralmanas, in conformity with the principles of legal science” The expression ‘in accordance with the principles of legal sctence’ 1s intended to exclude the principles of politics, such as those prescribed by Usinuh and others, and not however, for excluding the prinerples of polttics in accordance with political science which 1s included im the science of legal principles, since saya Narada ? * Without detriment to the principles of legal science or the pohtreal science, a hing should carry on the investigation of disputes attentively and skilfully ” The Dharma S’éstras haye been pointed out by Pitimaha “ The four Vedas with the Angas, the Vimdns? the Smris likewise, these are the Dharma S’astras , the Purdna and the Nydya philosophy’ The S’nrt; referred to here as a distinct source is the Artha Sactra 1 e. Political Science, where (the considerition of) Artha 1s given prominence That, moreover, his been pointed out in Bhawshyat Purina ‘The use or non use of the srx means according to the importance of the object, the utilisation of the means such as perce and the lake others either collect ely orseparntely, the appointment of presiding officers, the uprooting of thorny objects , this smrti has been called a drsht irth?-one havinz a visible purpose--by the sagis, O elder brother of Garuda’ This 1s merely an Mlustration of a dr Afirt}a Smru Thus the meaning 13 that the science of Polity which treats of peace, war, and the lhe topics,19a Sart with a visible purpose lus (rule of) following both the scrences, 1s only applic able where there is no mutual contradiction btween the two Tothat effect Narada‘: “Where the Diarma S‘dstra and the Artha S’dsira are at variance, one should discard the dictates of Artha S isfra and follow what isstated in the Dhirma S‘dstra’ Hence where by the declaration of the success of one, the secarmg of a friend occursas stated in the rtha S“éstra (bat) in oppostion to the way of the Dharma, there, by discarding the securing of 4 fren, the sucass of the other party alone shonld be declared ee 1 Not found in the published edition — 2 Nook If 1 3 str 37 4 Inte go 43 10 15 3044 wr 10 15 20 25 When a confiet among smris, Nydya Where, moreover, there 1s a contradiction between two smrtis, there states Yaydavalkya * ‘* Where two smrtis conflict, prnciples of equity ag determined by popular usage shall prevail’? The meaning is that where there 1s a conflict between two smrtis which have out for their basis, (there) such a result should be obtained as would work an adjustment of the two on the strength of the rales of logic as to relevancy and non- relevancy as deduced from popular usage In this manner, even whea there 1s no conflict, such dictates of sdstra alone should be followed as are supported by the rales of justice , so says Brhaspat: “By a sole reliance upon the aisira, should not a decision be made, for, a deliberation devoid of reasoning, leds toa frustration of Dharma — Hence, it comes to be stated an tetms that one shonld decide by a resort to the import of the sistra only, when supported by (rales of) logic It has also been stated by Gautama * “ For arriving at a judicial decision, rules of loge area means" ‘Tor arriving ata judicial deasion,’ ¢ ¢ for arriving ata legal decision So also Another Smriis “One who investigates by means of reasoning, such a one comes to hnow the Dharma, not any other There fore one should notdecide all at once, so says Pitimaha: “ Untruths plausibly appear hike teaths while truths looh like untraths, oning to cir cumstances creating suspicion , therefore it 1s proper to make an investi gation” Narada? also ‘The firmament has the appearance of a flat surface, and the fire fly looks like fire, yet there 1s no Pact 25° — surface to the sky, nor fire in the fire fly Therefore itis proper to investigate a matter, even though it should have happened before one’s own eyes One who delivers bis opimon after he‘ hasinvestigated (the matter) will not violate justice One® who has not committed theft, comes to be (declared) a thief, awhile a thief comes to be regarded asa non thief, although he had not committed (any) theft, mandatya® was found to ben thief ata trial YT Book W2t 2° Dh B Ob IY 29-4 3 In7e 4 Tho originalis qfax mataraig. a uy gga Dr Jolly translation is “one who does not deliver hia opinion till he hat investigated the matter ete & This ond the following verses aro not tobe foond in Dr Jollys Edit ‘They are foand Sn the Trivendram edition of Narada as Verse 36 on page 8, ‘Verse 39 on page 8 6 Udagaeya was wrongly deslt with as a thief There are various vers of this eplaode In the several Puranas According to the Wérkandeya ( Ob. 1 and the Garuga(I 142) ho wa: impaled andes charge of theft The Pours Purdna (141, 152) states that he was suspected of a horse theft In the Shands Puréna(V, 169-172 ) ornaments of a woman, and Kinge wealth (VI 167) are the audjyects of theft There ise well known Rebl of that name Ia the Vedlo htcratare,Inveshigation to be very careful The divine dharma indeed 1s very subtle, dificult to be seen, difficult to be investigated , hence the course of justice should be conducted by a visi ble path’ ‘ Surface," z. ¢ the earth's surface ‘Ata tral’, +e by the particular variety of a deciston Lnown as judicial investigation (Vyat chara) ‘ A visible path’ t e clear way Manu’ glso ‘As a hunter traces the lair of 4 (wounded) deer by the drops of blood even so the king shall dis cover on which side the right hes, by mferences (from the facts) (14) By external signs let him discover the internal disposition of men, by ther soice, colour, mottons, aspect, eyes, and gestures also’ Yayfavalkya? also “In the case of an assault for which there were no witnesses, the investigation should be carried on by means of marks, probibilities, popa lar report and the like, for fear that the maths might have been counter feted” The meaning 18 that im a case of an assault for which there exist No witnesses, one should not decide merely by signs like a wound or the hike, because of the possibility of an artifical wound, but that the case should be investigated by regard to probabilities ete So also Narada? “Some one might by making a mark upon himself and throagh hatred, cause trouble to another , m such a case, the investigation should be by a resort to reasoning, motive, the subject matter, and past relations (betiveen the two)" ‘Mark,’ such as a seat or the hke ‘ Reasoning,’ s ¢ inference from circumstances ‘Motive, logical inference ‘The subject," 1 ¢, the cause, ‘ Relation,’ ¢ context, or previous quarrel ‘ The investiga- tion + ¢ witha view to decide the dispute in accordance with actual happenings Hence also Yajiavalkya ‘ ~‘ After discarding all circum- vention, the king should decide disputes according to the actual facts , for even a real claim (based on actual facts), 1f not properly presented 15 hkely to be Jost in @ judicial proceeding ’ The meaning is that there being an absence of certainty about documentary and other evidence, the case «et up by the plaintiff or the defendant, although (it may be) true according to actual facts, 1s lost in the trial, and it 18 for thts reason that he should parsue actual facts Narada$ also “The king having the means of justice, may indeed neglect incorrect statements 1f made, he should pursue facts alone . since prosperity 13 based on justice" ‘Statements’ (Seehvam) + e¢ declara- tions made by the planta and the defendant. The meaning is that here one 18 not to pursue the rambling prattles of an indnidual, but that as far as may be possible one should parsue the real truth When, however, rt 15 1 Ch VIII 4¢ 25 2 Dook IE 212 3 Ch Lb t76 4 Book I 19 8 Intr 31 45 5 10 15 20 25 30 3546 or 10 15 20 When no Text the Local usage. not possible entirely to trace the actual frets, then by resort to circumven tron even 4 decision should certamly be made to depend upon witnesses and lke other means of evidence So also his been stated by the Same Author 1‘ Because it may be founded either on trath or on error, there- fore it issud to have two results” By Gautama? also has it been stated “Tn cases of dispute the trath shall be established by means of witnesses.” ‘By means of witnesses ' 1s intended by amplicition to include other means of proof Hence also Manu? =‘ Kvery day, in accordance with the prin ciples of local usases and also the dictates of S astra all (eases) which have been set out under the eighteen titles of law” 1 ¢ the supplement 19 tht the cases set out (under the titles) should one look into these, 1m the absence of the dictates of the

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