The Classical Hindu Law : Chapter 02

(This is 2nd part (part 1st) of a long article, having first chapter only, to be published in series in Maghaa. This scholarly paper on Classical Hindu Law is written by Vidit Singh Chauhan, a practising lawyer in Supreme Court of India and Delhi High Court.)

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TABLE OF CONTENTS

1. INTRODUCTION
   1. DETAILED INTRODUCTION
   2. THE CONCEPT OF DHARMA
   3. SOURCES OF LAW
2. ADJECTIVE LAW
   1. CONSTITUTION OF THE COURTS
   2. VYAVAHARA (DISPUTE)
   3. INSTITUTION OF ACTION
   4. PRAMANA (PRINCIPLES OF PROOF)
3. LAW OF PROPERTY AND CONTRACT
   1. POSSESSION, OWNERSHIP AND PRESCRIPTION
   2. BOUNDARY DISPUTES
   3. INTERESTS
   4. DEBTS, PLEDGES AND SECURITIES
   5. DEPOSITS AND TREASURE TROVE
   6. WAGES, HIRE AND COMPENSATION
   7. LAW OF COMMERCE AND COMPANIES
4. CRIME, PENANCE AND PUNISHMENT
   1. RELIGIOUS TRANSGRESSIONS
   2. THE PRAYASCHITTA (PENANCE)
   3. SECULAR CRIMES
   4. PROPERTY CRIMES
   5. OTHER CRIMES
   6. PUNISHMENTS
   7. BLOOD MONEY
5. FAMILY LAW
   1. FORMS OF MARRIAGE
   2. SONSHIP AND ADOPTION
   3. THE JOINT FAMILY
   4. PARTITION
6. CONCLUSION
7. BIBLIOGRAPHY

LIST OF ABBREVIATIONS

ApDh	…	Apastamba Dharmasutra
ApGr	…	Apastamba Grihyasutra
Arth.	…	Kautilya’s Arthashastra
AsGr	…	Ashvaalayana Grihyasutra
AV	…	Atharvaveda Samhita
BaudhDh	…	Baudhayana Dharmasutra
BrSm	…	Brihaspati Smriti
Ch.Up	…	Chhandogya Upanishad
GauDh	…	Gautama Dharmasutra
Kane	…	History of Dharmashastra, by P.V. Kane
KatSm	…	Katyayana Smriti
MahBh	…	Mahabharata
ManuSm	…	Manu Smriti
Medh	…	Medhatithi
Mit	…	Mitakshara, commentary on the the Yagnavalkya Smriti
NarSm	…	Narada Smriti
Panini	…	Ashtadhyayi of Panini
RV	…	Rigveda Samhita
SB	…	Shatapatah Brahmana
SmCh	…	Smriti Chandrika
TS	…	Taittiriya Samhita
TU	…	Taittiriya Upanishad
VaDh	…	Vasishtha Dharmasutra
ViSm	…	Vishnu Smriti
YagSm	…	Yagnavalkya Smriti
YV	…	Yajurveda

ADJECTIVE LAW

2.1 CONSTITUTION OF THE COURTS

The King’s primary duty was the guarantee of protection of his subjects. This would entail detection of the wrong and the wrongdoer as well as punishment to the wrongdoer. The Smritis make it obligatory on the part of the King to inquire into such wrongs (Vyavaharas) with the assistance of a body of councillors

“The King shouldwith the help of learned Brahmans ddecide such vyavahara in accordance with the dictates of Smritis, unruffled by temper or uninfluenced by desire”. [13]

The Dharmashastras, or in case of peculiar local conditions, local customs and usages not inconsistent with the Dharmashastra, was the law to be administered. Even though the King could have sought the help of learned Brahmans or ministers in settlement of such disputes, the responsibility was ultimately his.[14] Permanent appointment of persons called Sabhyas (sanksrit mein), as members of judicial assembly was also provided for.[15]

Such persons had to be well versed in Veda, Mimansa, Vyakarana or Grammar and the Dharmashastras and had to be absolutely impartial. Persons who were totally ignorant of the customs and usage of the country or bereft of character were to be avoided.[16]According to Manu, they should be at least 3 in number and 5 or 7 according to Brihaspathi. While Katyayana appears to be liberal in allowing any of the twice born (dvija) to the position, in the absence of Brahmans, Manu and Yagnavalkya insist on Brahmans only. These appointees were bound to aid and advise the king and to oversee the enforcement of their decision. As far as possible a unanimous verdict was to be achieved.

The modern conception of amicus curiae can also be traced in Kathyayanasmriti, where the King was given an option to have advice about a dispute tendered to him from learned Brahmans. Such advice was only influential in nature.

The verdict of the appointed councillors, just like that of the modern day jury, was binding on the king. While the nominated councillors were only honorary, the appointed ones were either stipendiary or honorary. Thus, the full strength of the court presided over by the king was composed of, apart from the King himself, the ministers, chief priest, permanent members of the assembly and the learned Brahmans, if any. The Chief priest had an advisory power during the royal exercise of the prerogative of mercy and also a regulatory power over the punishment to be awarded.[17]

The king may as well invite respectable and aged merchants to the judicial assembly to witness the proceedings to make it an ‘open court’ to some extent. A learned Brahman, called Pradvivak (supply Sanskrit) was to be appointed for presiding over the proceedings, if the king was unable to take part, owing to other activities.[18] He was to the chief of the assembly, next highest only to the court of the king.

However, over time apart from the courts under the authority of the king, there emerged another class of courts in the nature of arbitral tribunals constituted by the consent of both the parties. This class of courts also consisted of specialised tribunals constituted for different professions like agriculture, artisans, trade, which were headed by men specialised in those professions who would be better able to understand and resolve their specialised disputes.[19]

These two classes of courts can be summed up as follows:

First class of courts-

1. The Highest court presided over by the king, usually in the capital and in his fort, or wherever he may sojourn.
2. The next highest court presided over by the deputy, Pradvivaka, and his councillors. Authority to this court was delegated by the king in writing or by handing over of his seal.
3. Assemblies with local jurisdiction over small towns presided by inferior judges.[20]

Second Class of Arbitration Courts-

1. Poogha: Association of residents in any town consisting of people from various castes and professions.
2. Shreni: Assembly in the form of guilds consisting of persons from different castes or one caste, but always the same profession.
3. Kula: A simpler assembly of persons related as agnates or cognates or by marriage.[21]

Being the lowest court of arbitration composed of the kinsmen of the parties to the dispute, the Kula had to be resorted to in the first instance as it was thought better to resolve the matter over deliberation between kinsmen. And the other courts were approached in succeeding order of hierarchy.

The first class of the courts under the authority of the king exercised supervision over the work of this second class of arbitration courts.[22]

Both these classes of courts had their staff and officers to assist it in its functioning. They were:

1. Ganaka, the accountant who calculated the amount or sums due and prepared the Nirnaya Patra, or decrees;
2. Lekhak, the scribe who then and there drafted the pleadings for the parties;
3. Sequestrator for overseeing the property after seizure;
4. Sadhyapala, or the summoner, who enforced the attendance of the parties;

The members of the assembly/court tendered their opinion, the president pronounced the decision and the enforcement of decree was the responsibility of the king.

The Arthashastra presents an interesting composition of inferior tribunals in the vsub-divisions of the province. The various divisions in a province were Sangrahana, Kharvatika, Dhronamukha and Sthaniya. Sangrahana was a centre of a group of 10 villages, Kharvatika of 200 villages, Dronamukha of 400 villages and Sthaniya of 800 villages. It is apparent that the lowest level of village administration was a Sangrahana; twenty such sangrahanas formed a kharvatika; twenty such kharvatikas formed a dronamukha; Sthaniya was composed of two districts. Similar sets of tribunals constituted of three judges in every unit of administration even from the lowest for the administration of justice.

Two classes of courts called Dharmastheeya and Kantakshodhan have been described in Arthashastra of Kautilya. With regard to administration of ordinary civil and criminal matters, Dharmastheeya were the regular courts. On the other hand, Kantakashodhana courts seem to have exercised special jurisdiction over matters related to commerce and industry, breach of peace and offences against the State. Moreover, they also oversaw the enforcement of contracts, regulation of wages and prevention of heinous offences.[23] These tribunals do not find a mention in the Manusmriti, probably due to advancement of ideas and civilisation and consequent specialisation in the domain of administration of justice.

Courts have been divided into four classes by Brihaspati, viz., moveable courts, stationary courts, courts deriving authority from the king and courts presided over by the king. Itinerant courts of three kinds are also mentioned—one in the forests for the benefit of foresters, one for caravanserai merchants and one among military men. The court presided over by the king may be stationary or moveable, in the nature of circuit courts. Other courts were only stationary.

According to Bhrigu, 15 kinds of courts were there:

“3 kinds of itinerant courts mentioned above, 4) courts presided over by residents of the neighbouring vilages in disputes about village matters 5) a court presided over by persons chosen by both parties among kinsmen, 6) among merchants or 7) among townsmen, 8) courts presided over by villagers 9) or by townsmen 10) or by several families 11) or by guilds 12) or by persons learned in the four sciences of polity 13) or by Kulikas 14) courts appointed by the king 15) the supreme court of the king.

Excepting the last two, the rest were arbitration tribunals which derived their jurisdiction from the consent of the parties and were formed whenever the parties chose to invoke their aid. Out of these first five were itinerant courts. These arbitration courts were empowered only to decide but not to carry out their decisions. Their jurisdiction was also ousted in serious cases of crime relating to violence, theft, etc.”

Except on certain tithis (Chaturdashi, Amavasya, Purnmashi and Ashtmi), the stationary courts were required to be held every day in the morning. The timing was set for 4 hours after sunrise, giving due allowance for the morning karma of the populace.[24]

To avoid conflict of interest, the king has been prohibited as per Pitamaha in Santiparva as well as Manu in Manusmriti to try any dispute in which the dispute involves the king or any of his agents. There is also a prohibition to inquire into a dispute not actually brought before the king or his recognised agent. However, certain exceptions do apply to this rule in case of certain heinous offences against the person of the king called chhala, or in case of grave and minor offences against the society called apradh and pada respectively. These were investigated and brought within the cognizance of the king through spies or informers. Except on such information being brought to him, the king could not take cognizance on his own motion. Except the aggrieved parties or anyone duly appointed by them to represent their interest, no third party could file such complaint.

Finality is attained on the action upon the verdict given on the basis of pleadings or oral evidence. The verdict on the basis of pleadings is called ‘Teerit’ and the verdict on the basis of oral evidence is called anushist.[25] Those judgments for which the parties were mad or deprived or their senses, not of the age of sufficient maturity or affected by mental distress, were not binding on them.[26] Similarly, an ambiguous decision on the face of it, judgments passed in respect of persons not entitled to sue such as disqualified persons or enemies of the country, were not conclusive. In the absence of any of the abovementioned emergent cicumstances, the judgment was always conclusive. It could not be set aside except by way of ‘Punarnyaya’ which comprised both review and appeal.

Decisions could be altered or reviewed by the same courts which passed them in case grounds were present for doubting their soundness. Decisions obtained through compulsion or fear could also be modified on discovery of such influence. In cases where the occurrences took place during the night, inside home, under suspicious circumstances or under any closed environment, the decisions would be subject to review.[27]

Parties dissatisfied with the verdict could appeal to the next highest court. In case the appeal was allowed, not only was the was the verdict overturned, the members of the judicial assembly who erred in their decision along with the party who secured the wrong decision were liable to a punishment of fine, which usually amounted to be double the value of the claim. A corrupt or perverse judgment invited a fine twice the amount inflicted on the losing party. In cases of decisions being arrived at on the basis of false evidence, only the witnesses were liable, unless the perjured testimony was procured.

A verdict based on admission was not appealable.[28] Frivolous appeals devoid of grounds were also punishable with fines.[29] Appellate jurisdiction was present in case of regularly constituted courts under the authority of the king from the lowest to the highest courts. Decisions of the highest judicial assembly appointed by the king were liable to be appealed against to the king in person, only according to Narada. Other Smritikars hold the decision of this assembly to be final and binding. Even in the case of arbitration courts, provision of appeal was present from Kula to Shreni to Poogha and finally to the judicial assembly and the king. The suit did not abate with the death of the suitor and could be continued by the heirs or representatives.

It is to be observed that all such courts were in the nature of assemblies or panchayats presided by several judges. Single judge tribunals were not present. In Santiparva, Bhishmapitamah specifically prohibits a single judge trying a matter. He goes on to say that the decision of the single judge, however prudent or virtuous he might be, should not be trusted as the decision of several judges commands greater respect than that of a single judge. These assemblies and courts display a great deal of representation from the society by including men not only learned in law but also representations from different professions.

Besides regular courts, we see a provision for specialised courts in the nature of arbitration tribunals recognised by the State and resorted to often by the people. They functioned in parallel with the regular courts. They were invested with jurisdiction on the consent of the parties. They were liable to supervision by the State and the regular courts could always be approached in case of grievances with the functioning or decisions of such courts.

Here are the observations of Vincent Smith about these assemblies and courts:

“It is a pity that this apparently excellent system of Local Self-Government, really popular in origin, should have died out ages ago. Modern governments would be happier if they could command equally effective agency….The details of the working of the village associations or assemblies are specially interesting and prove that the Government was by no means a merely centralised autocracy. The village assemblies possessed considerable administrative and judicial powers, exercised under the supervision of crown officials.”[30]

2.2  VYAVAHARA (DISPUTE)

A vyavahara, as a dispute, has been defined by Katyayana as the clearing up of doubt amidst conflicting statements. The verse Yagnavalkyasmriti, I.5 so describes this term. However, Vignaneswara in Mitakshara gives a juristic definition. Vyavahara has been defined by him to be a cause of action or when taken to the court, as a dispute, that is consequent upon a wrong alleged to have been committed by one on another.

It is done by lodging a complaint with respect to any act suffered that is opposed to the prescribed conduct as laid down in the Smritis. This is the plaint as understood today.

Every such cause of action passes through four stages:

1. Pratigya (Plaint). It is also known as Bhasha or Paksha.
2. Uttara (Written Statement).
3. Samshayahetuparamarsha. Literally it means discussion for clearance of doubts, but legally it is the weighing of evidence.
4. Nirnayapramana or the final conclusion.

According to the susceptibility of the nature of proof involved, Vyavahara may be of two kinds, Shankabhiyoga and Tatvabhiyoga. Shankabhiyoga is a dispute which can only be decided on circumstantial evidence as there is Shanka or doubt in the matter. Tatvabhiyoga, on the other hand, involves assessment of tatva, or the material involved in the dispute. Direct proof can be obtained in such matters.[31] Tatvabhiyoga can again be divided into two kinds—Pratishedhatmaka and Vidhyatmaka. Pratishedhatmaka involved a denial of the right to property of another whereas in Vidhyatmaka an overt act is done in respect of the person or the property of another is committed.[32]

Some matters involved deposit of money as security by either of the party in support of his claim. These matters have been grouped under the term Sapana Vyavahara.[33] They are further classified into Sottarvyavahara and Anuttarvyavahara.[34] This deposit ought to be made before the submission of the plaint. Either party deposits to the king. The amount is forfeited it the party fails to establish his case. This forfeiture is in addition to the penalty inflicted on the unsuccessful party.

Together, these disputes constituted mainly 18 forms of action, as specified by Manu.[35] They are as follows:

1. Rindaan Recovery of debt
2. Nikshepa Bailment
3. Asvaamivikraya Selling property not owned
4. Sambhuyasamusthan Partnership
5. Dastaanpakarma Non-completion of gift by delivery
6. Vetanaadaanama Withholding of wages
7. Samvidhvyatikramah Breach of agreement
8. Krayavikraya Sale and Purchase
9. Svamipaalayoh Vivadah Dispute between master and servant
10. Seemavivaada Boundary dispute
11. Dandapaarushya Assault
12. Vaakpaarushya Slander
13. Steyam Theft
14. Saahasam Violence
15. Strisangrahanam Wrongfully taking of a woman
16. Stripundharmah Relation of husband and wife
17. Vibhagah Inheritance
18. Dyutasamaahvayah Gambling

In addition to these, 132 subsidiary actions have been mentioned which come under the general classification provided aboce.[36]

A Vyavahara may be terminated in any of the four following ways:

1. Dharma, abstract justice
2. Vyavahara decision on the basis of the contest of the parties
3. Charitnam, written law, local usage
4. Rajshasanam order of the king.[37]

Dharma, or abstract justice, requires detection of the wrongdoer and the restitution of the property to the rightful owner. Vyavahara has here been used in a restricted sense limited to the trial of the suit. If pursued according to the laid down procedure in the Smritis, has here been used in a restricted sense limited to the trial of the suit. If pursued according to the laid down procedure in the Smritis, Vyavahara helps the attainment of justice. However, local usage or special law may take precedence over the above two and that may terminate the dispute. And when none of these are to avail in the dispute involved, the command of the sovereign, the king will be the final decree, provided that it is not opposed to the sacred law or natural justice.

Each of the above four ways of termination are further divided into two.

Dharmanirnaya can be said to be of two kinds. Ascertainment of the decision on the dispute after full investigation and reasoning verified by solemn affirmation is the first type of Dharmanirnaya. When the adjudication is done by admission of the opposing party or by the divine providence is the second type.

Verdict given at the conclusion of the trial on production of proof is the first type of Vyavaharanirnaya while the the verdict given against a party on the basis of its fraud or prevarication is the second type.

Verdict arrived at with only inference from the written law is one type of Charithram while a decision arrived in accordance with the local custom is of the second type.

Instructions or directions from the king have to be sought in cases of recognised proof as well as other cases.

Yagnavalkya stresses importance on the ascertainment of truth, despite all other technicalities involved in the law when he says :

“The King shall get at the truth of a case avoiding all frauds.[38]

Vyavahara, therefore, must be construed in this context, although Narada mentions in the ascending order of merit the four modes of termination of a Vyavahara. Local usage prevails over the procedure and rigours of formal law in disputes among merchants, military men, etc. This view is endorsed by Brihaspati.

Narada captures these ideas picturesquely by giving justice the form of a human body having four limbs, viz. Dharma, Vyavahara, Charithram and Raja Shaasana. This body of justice may employ the famed methodology of Saama, Daana, Bheda, Danda, viz., conciliation, propitiation, separation and punishment for achieving its ends. It should be conducive and beneficial to all the four Varna. Its positive and negative effects extend to the king, judges, witnesses and the parties alike. Its 8 limbs are:

1. King
2. Chief Judge
3. Members of assembly
4. Sacred law
5. Scribe and accountant
6. Gold
7. Fire
8. Water

It owes its origin to the three famed mental qualities-kama, krodha and lobha. There are two entrances to it, viz., either by truth being evidently ascertained or by the fraud that is finally punished.[39]

There are four stages through which vyavahara has to pass:

1.  The dispute commences or comes on record through the Paksha or Bhasha when the complaint is laid.
2. The opposite party or the adversary has to then appear and file his reply or Uttara, which is the written statement.
3. Samshayahetuparamarsh is the third stage which involves weighing of evidence
4. The termination is with Nirnayapramaana that is the proof and final conclusion.

Katyayana calls the third stage to be Pratyakaalita, i.e., the determination of the burden of proof. Each of these shall be dealt individually subsequently. The order of precedence in taking up the trial was either according to the importance or according to the order of time.

 

2.3 INSTITUTION OF ACTION

The trial commences with the presentation of the plaint that is the Pratigya. No distinction is generally made between civil and criminal matters in Classical Hindu Law. Complaint should be lodged by the aggrieved party himself in person to the king and not through agent or servant. He could, however, authorise his friends or relations to represent him to lodge the complaint on his behalf. The complaint was assured of his safety to vent out his grievance without fear. The complaint may be lodged against multiple defendants. On the complaint being found to be in order and reasonable on a preliminary examination, summons was issued to the king with his seal to the opposite party to appear.

The substance of the plea of the complainant was reduced to writing by a scribe of the court on a plank and when the Brahmans of the assembly thought fit after consideration of the plaint that the grievance was genuine, the summons was either entrusted to the complainant to be served by him to the opposite party, or alternatively to the court summoner.[40]

The following persons could not be compelled to appear:

“An infirm person, a child, an old man, one who is in an inaccessible place, one who is in misfortune, one who is engaged in study, one who is in a hurry to do any business, one who is distressed in mind, those who are eager to do any business for the king or to celebrate any festival, mad men, drunken men, careless men, men afflicted by misfortune, servants, a young woman who has been newly shorn of her hair, a woman who is in confinement, a girl of the highest caste, and noble men of high caste. The dependants of these noble men, women of dissolute character, prostitutes, persons of low families, and outcasts could be summoned to appear.”[41] On proof of exceptional circumstances however, the persons so exempted could be compelled to appear. There was no clear distinction as such between a summons and a warrant.

Every writ issued was in the nature of a warrant. The terminology used for the equivalent to a warrant was Aasedhya. The following directions were contained in it: place of confinement, returnable date or the latest time of appearance, restriction or prohibition of movement from any particular place, restriction on committing of certain acts. No disobeyance was permitted for any of the prescribed directions so prescribed.[42] The disobedience entailed punishment as the summons, with the seal of the king, was considered a direct order. Even so much as improper service of summons was punishable.[43]

However, such disobedience was excused in certain cirumstances: floods, impassable forests or sandy tracts rendering the access to courts impossible, obstruction by robbers or an alien army, desire of marriage, affliction of disease or grief, engagement in the service of the king or the performance of sacrifices. Similarly, exemptions were extended to persons such as messengers, minors, persons tending cattle, or agriculturists watching crops, sculptors engaged in works and persons carrying arms in battle.

These persons so exempted could still be represented by their authorised representatives or could appear after their special circumstances or disabilities ceased to exist. Right of representation of the person summoned was granted to a person summoned who was not conversant with the litigation or one who was already engaged on a pursuit. In serious crimes such as murder, theft, adultery (considered serious at then), no right of representation was granted.[44] The deputation of such agents did not make them guilty of appearing for another man’s cause as in ordinary circumstances one having no interest in litigation could not appear for another.[45]

The complainant, on whose grievance the summons was issued, in this context, was called Arthi and the defendant was called Pratyarthi. The conduct of the case was allowed to be left by the Arthi to his son or grandson. Similar authorisation could be given by the Pratyarthi, except in cases of a serious nature. Despite such right of representation being granted, the final decision would nevertheless bind the actual parties.[46] The remuneration for these agents varied from 1/16, 1/20, 1/20, up tp 2/5 of the suit amount. Sustenance charges were paid in case of no remuneration being provided.[47]

The parties, after their appearance in the court, were called upon to find surety for payment of the decretal amount or the fine. The daily battaa of the peon was to be paid in case no surety could be found. The peon kept the party in custody till the deposit of the amount claimed.[48] Katyayana lays down the qualifications of competent sureties.

Particulars of the Plaint :- During the appearance of the Pratyarthi (the defendant), the complaint of the Arthi (the plaintiff) was again taken down in writing in the presence of the Pratyarthi with particulars such as the alleged date and time of occurrence, name and personal details of both the parties and the substance of the claim. This recording was to be done in clear and unambiguous language without any room for further confusion.

The Arthi set the law in motion by presenting a brief statement of the case at the outset and then proceeding at a later stage to present and prove each material allegation.[49] If there was found any contradiction whatsoever in the initial and subsequent detailed presentation of the case, the action was liable to be dismissed forthwith.[50] Allegation of a different set of facts, improper conduct before the assembly casting grave doubts on the bona fides of the claim were some of the instances where contradiction could lead to the rejection of the plaint. Wilful evasion of the summons or non-response entailed action for the defendant.[51]

Apart from the general particulars necessary in all matters, the particulars peculiar to any action individually ought to be mentioned. They were necessary for the execution of the decree. Such non-specification too, could lead to the rejection of the plaint.[52] For matters pertaining to immovable property, the following particulars were prescribed to be given:

1. The country
2. particular place of location
3. its boundaries
4. the caste of either party
5. their names
6. the person is possession of the neighbouring property
7. its extent
8. its colloquial or local name
9. the names of the ancestors of both the parties, and
10. the name of the king by whom the grant was made.”[53]

Therefore, the above mentioned are the fundamentals of a proper Paksha or plaint. Some features may vitiate a plaint to make it unacceptable. They were liable for summary rejection. Such features are:

1. When there is a prayer for the return of a non-existent thing. However, when such a defective prayer is combined with a prayer for an existent thing, it is acceptable partly.
2. When the complaint is for frivolous matters not requiring the attention of the court.
3. When the plaint is not intelligible or capable of being given an accurate meaning.
4. When the plaint is without an object. This has also been commented to mean that any complaint outside the 18 forms of action mentioned above cannot be entertained.[54]
5. When there is an allegation of an impossible act.
6. When the plaint discloses inconsistent facts
7. When the plaint does not ultimately pray for prevention of a wrong or restitution of any property.

According to Narada, the claim for a debt barred by limitation (Ateetkal) cannot be claimed. Generally, multifarious claims in a single plaint was not allowed, which was called Anekapadasankeern. This does not prevent the joinder of claims of one kind. Acts of different nature cannot be tried simultaneously but can be tried one after another separately.

Katyayana lays down that in cases where the king is only concerned for reaching the truth of the matter he may accept a plaint with distinct prayers. The rule of Anekapadasankeern therefore applies only in cases of various claims being tried in the same action.[55] Notwithstanding the abovementioned strictures, the plaint was allowed to be amended even after bringing it into record before the reply was filed by the opposite party and under special circumstances, even later.[56]

Certain persons were deemed incompetent to sue, such as a drunkard, a person without consciousness owing to disease or evil spirit, a person afflicted by disease, a person in mental distress, a minor not capable of comprehending the suit, enemy of the town or country, an exile. Actions between persons in the following relationships were prohibited:

1. master and servant
2. parent and child
3. husband and wife
4. master and pupil.

Even in such relationships certain exceptions were carved out. According to Gautam, a pupil may be punished for committing an act short causing death of his teacher. The master may chastise the pupil by beating with a rope, bamboo or a twig but not inflict injuries on the vital parts of the body. If the master chastises more than the prescribed limits, he himself becomes liable to punishment. In the case of ancestral property, the son can sue upon alienation by the father.

The Pradvivaaka should record the substance of the statement of the Arthee. This was the scrutiny done before the Uttar or the reply was called for. It was called Purvapaksha. If such scrutiny was not done before calling for the reply, the members of the assembly were liable for punishment and the trial was to be commenced again.[57]

Uttara (Written Statement)

After the Purvapaksha or the substance of the plaint has been read over to the Pratyarthi (the opposite party), the reply (Uttara) must be taken down in the presence of the plaintiff (Arthee).[58] Additional time may be granted to the opposite party for preparation of his defence in the interests of justice. It may be granted either by the assembly in its discretion for transactions that took place long ago or on request of the opposite party.[59]

The extension might range from a day to a month or even 4 fortnights. If the opposite party’s defence is not ready within the prescribed period, he may be liable to punishment he may be liable to punishment with a fine.[60] In serious cases, extension of time was not granted. The Arthee is entitled to a decree in case of no reply.

The essentials of the Uttara are:

1. It must traverse all the allegations in the regular order.
2. It must be logical and reasonable.
3. It must be answering directly to the claims.
4. The language used should be precise and free from ambiguous interpretation.[61]

The following are considered to be defective replies, liable to be rejected:-

1. Prakritaat anyat sandigdha: The reply is misleading and unconnected with respect to the subject of the claim and is suspicious.
2. Atyalpa: Partial defence.
3. Atibhoori: Exaggerated defence
4. Pakshaikadeshvyaapi: Another kind of partial defence
5. Vyastapadam: Reply in respect of some other matter.
6. Avyaapi: Vague reply.
7. Niguudhartha: Ambiguous reply
8. Aakulam: Inconsistent reply.
9. Vyakhyagamyam: Reply in unintelligible or foreign language.
10. Asaaram: Defence without substance.

 

2.4  PRINCIPLES OF PROOF PRAMANA

After the Uttara or the written statement had been filed, it was determined by the judicial assembly on whom the burden of proof lay. In pursuance to that determination, any of the parties was called upon to produce evidence or adduce proof. Proof could only be admitted when tendered in presence of both the parties. The trial was for only one particular claim at a time, therefore, there was no necessity for framing of the issues as is now the case. Proof Pramana, is of two kinds, viz., (1) Manushik or Human, (2) Daivik Divine.

Human proof may be furnished by:

1. Documents Likhit,
2. Witnesses Sakshi,
3. Enjoyment Bhukti. [62]

The kinds of divine proof are:

1. Ghata– Ordeal by balance
2. Agni– By fire
3. Udaka-By water
4. Visha-By poison
5. Kosha– by drinking water.

Certain rules regulate the mode of proof applicable in certain cases. Divine proof is resorted to only in the absence of human proof. In case of adducing of the human proof and the divine proof together, human proof must be accepted in preference to the other.[63] Where also a portion of the claim only is proved by available human proof, the rest cannot be proved by divine proof. In such a case by reason of the rule that proof of a part amounts to proof of the whole, the whole claim must be held proved.

B Guru Raja Rao provides a great example: “Where a man has witnesses only to prove payment of money in the case of a loan and offers to prove the amount lent as well as the rate of interest by divine proof, the divine proof is not permissible. The rule that Saahas offences committed secretly can be proved by divine proof, applies only in the absence of human proof. The rule of Narada admitting divine proof in cases of Saahas committed in uninhabited forest, or at night, or in the interior of a house or of ocases of breach of trust must be understood similarly.”

There are certaine exceptions to the general rule which admits divine proof only in absence of human proof. For Katyayan, divine proof is the only possible proof in Saahas and Paarushya actions (actions for violence and defamation) for determination.[64]Either form of proof may be adduced in pleas of denial, confession and avoidance, subject to these rules. Brihaspati, Katyayana and Pitamaha totally prohibit any resort to divine proof in cases related to immovable property and in cases of minor insult.[65] Still, divine proof may be had in cases where the oral or documentary evidence is highly suspicious and the matter in dispute is involved in great doubt.

In preference to the rest, in some cases, documentary proof or proof of enjoyment alone is acceptable in preference to the rest among the forms of human proof. Whereas in respect of transactions carried on by corporate bodies, guilds or associations, documentary proof only will be valid and not any other even to the exclusion of oral evidence.[66] In cases of dispute about payment of wages or other such disputes between master and servant, non-payment of purchase money, and in disputes of gambling, oral evidence has greater legitimacy in preference to the documents and divine proof. In cases of right of passage, flow of water or other such easement rights, proof by enjoyment alone is preferable to other forms.[67] According to Katyayana, either documentary evidence or evidence of enjoyment has a greater part than mere oral evidence as tending to clear the dispute, in cases of immovable property. Between documentary evidence and the evidence by way of enjoyment, the latter has greater weightage.[68]

Title with possession: — Therefore in respect of rights to immovable property, Bhukti (enjoyment) comes foremost as a mode of proof as possession is an important incident of ownership. The possession has been described as the branch of a tree whose roots are in the title. However, mere possession is not considered to be ownership. It is only through a legal title, termed as Aagama, that a title is said be vested through guft, purchase, etc. In determining ownership, such title has greater validity than mere possession. For Yagnavalkya. howsoever perfect a title is of no value for determining ownership, if unaccompanied by even slight possession.[69] Katyayana and Brihaspati also insist on possession for completing the legal title. Katyayan posits that undisturbed possession for 10 years under a document within the knowledge of the former owner makes the document binding. Bhukti of even one of the several properties described in a single document riase a presumption of the Bhukti of the rest.

If enjoyment of property is allowed by the title holder to another person, the owner runs a risk of losing the property, the title not being of much avail over due course of time. Therefore, possession, even if slight, is enjoined. At the same time, possession by a usurper, for howsoever long a time, does not confer ownership on him.

Therefore, for possession to afford proof of ownership, should satisfy five conditions:

1.  Accompanied by title
2. Sufficiently long
3. Without interruption
4. Without obstruction
5. Within the knowledge of the adversary

In cases of enjoyment of property for a period lasting beyond the memory of man or for three generations, which is deemed to be taken to exceed the period of man’s memory, an exception applies. In such cases, mere enjoyment from generation to generation is a valid proof of ownership by itself, even if unaccompanied by proof of title.

One hundred years, being the period of his life, was considered the period of man’s memory. Validity of possession based on title had reference to enjoyment for a period less than one hundred years. As it is possible in this case to determine whether possession is based upon title or not, possession accompanied by title is recognised as a mode of proof. Mere possession is recognised as a mode of proof in cases of immemorial enjoyment or enjoyment for over three generations, where it is not possible to trace the existence of the title as the origin of possession. In case of no memory of enjoyment from generation to generation by right, mere possession is of no avail, even if it is for more than 100 years. A person in such enjoyment of property without title is liable to be punished as a thief.

Therefore, the conclusion arrived at by the Smriti writers, is that for ownership, possession should have a lawful origin, which over due course of time, will prove ownership. Without possession, mere title cannot prover ownership as want of possession may indicate subsequent transfer of ownership.

Title without possession: Yagnavalkya holds that title, however perfect, is not complete without even slight possession. According to Vigneswara, this rule insists upon the essentiality of delivery not only for divesting one of ownership but also for the purpose of transferring ownership to another. Only by acceptance of delivery is transfer of ownership affected. Acceptance may be of three kinds:

1. Maanasik Mental: Where the transferee wills that the the property shall be his, mental acceptance takes place.
2. Vaachik Oral: This is done by means of declaration in unmistakable language that the property has become his own.
3. Kaayik Kaayik: It is signified by actual modes such as receiving, touch, etc.

Various rules have been laid down which indicate the modes of physical acceptance.[70]

Prescription and Limitation :

In this respect, Yagnavalkya lays down the following rule-

पश्यतोSब्रुवतो भूमेर्हानिर्विशति वार्षिकी |

परेण भुज्यमाना या धनस्य दशवार्षिकी ||[71]

When despite knowledge to the owner, a stranger is allowed to enjoy the land for twenty years continuously without obstruction, the owner loses the title; in case of movable properties, titles were lost similarly after ten years. According to Vignaneswara, ownership in the property being lost after enjoyment for the prescribed period does not appeal to reason, as mere non-obstruction is not recognised by law or usage as a mode of transfer of ownership. Neither can mere enjoyment for twenty years serve as a proof of ownership as it does not necessarily include within itself enjoyment.

According to Gautama, there can be eight modes through which ownership can be acquired:

1. Inheritance
2. Purchase
3. Partition
4. Seizure
5. Finding
6. Gift to a Brahman
7. Conquest for a Kshatriya, and
8. Acquisition of wages by Vaisha and Shudra.

Narada mentions only six:

1. Right by birth or finding of treasure
2. Gift
3. Purchase
4. Conquest or valour
5. Marriage
6. Inheritance

By adding gains of learning and mortgage this list and omitting gift to the above list, Brihaspati makes it seven.[72] By a rule of foreclosure, mortgage becomes a source of acquisition of ownership. The circumstances through which ownership is acquired are fairly recognised in the world and as his single authority cannot be considered sufficiently accurate to create an altogether new authority, the rule of Yagnavalkya cannot be taken to law down enjoyment as a mode of acquisition of ownership. Gautama’s saying is meant to lay down clearly, the modes of acquisition of ownership, and cannot be taken to be only illustrative. As has been specifically laid down that a sinner who enjoys property without a title shall be punished as a thief, it can be clearly inferred that enjoyment cannot be a mode of acquisition of ownership. This cannot, however, explain enjoyment without knowledge of the owner as Katyayana has laid it down as a rule that a person unlawfully taking away cattle, women and slave of another is not permitted to rely upon enjoyment in support of his title, the disability continuing with the son as well. Therefore, it is argued by him that this rule of Yagnavalkya will not prescribe loss of ownership.[73]

Nor is it operating as a bar to any action in respect thereof, as according to Narada, an action for the recovery of property post enjoyment by another for a prescribed period fails, where the owner was himself negligent in asserting his right or has wilfully accepted the enjoyment by the other.[74] Therefore, as per Narada, the right to property is not destroyed by enjoyment on account of neglect, but the claim is defeated. Manu views this similarly.

A person who, not being an idiot or a child, enjoys the property of another, is entitled to retain it as the action for the recovery of the same would fail.[75] Therefore, it is clearly to be seen that Vignaneswara’s view about the rule of Yagnavalkya neither being one of limitation nor of prescription is opposed to the texts of Manu and Narada and this attempt to explain it away is totally unsuccessful. A real owner, even though his legal title being unimpeachable, who allows his property to be dealt with by another as owner or enjoyed adversely to his knowledge is precluded from recovering it afterwards, according to Brihaspati.

Twenty years is the period which Vyasa prescribes for such enjoyment destroying the legal right to property, the same period Yagnavalkya fixes for immovable property. While Manu makes this right totally extinct without any remedy, Narada only lays down a rule of limitation.

Thus, it can be safely said that these texts unfailingly establish a rule of limitation and by implication, also a rule of prescription. Such inference receives credence from various texts, including that of Yagnavalkya which illustrate cases of permissive possession are then excluded from the ambit of extinctive prescription.

Yagnavalkya prescribes a period of limitation of ten years for movable property while Marichi prescribes 5 years. In the Smriti Chandrika, there is cited a text of Marichi to the effect that cattle, conveyances, ornaments and things taken with consent are liable to return within five years, otherwise being lost to the owner.[76] The fact that permissive possession neither vests the possessor with ownership nor detracts from the right of the real owner is clearly indicated by these texts.

There are other cases of implied permission where possession cannot be presumed to the detriment of the owner as being adverse, besides the cases where the permission is express, as in cases of permissive possession. In the category of those liable to ownership by possession, property of the king, of the learned Brahmanas, property of women, property of minors, boundary marks, property kept in pledge sealed deposit or bailment, are excluded by Manu and Yagnavalkya.[77] Enjoyment by the agnate or cognate relations of a persob may also be taken as presumed consent of the owner. Added to this list by Katyayana, are property of idols, as according to him, idols are not capable of assertion of their rights and prevention of hostile enjoyment. This bears a certain resemblance to the modern day law whereby the trust property is excluded from the ambit of the limitation law in some cases. For Narada, a merchant resident in a foreign country, or a student engaged in Vidya may claim, upon his return home, his property, within 50 years.[78]

In case of imprisonment of the original owner, adverse enjoyment will not be counted during the term of his sentence. Even though certain Smritikaars claim that these rules indicate the owner running the risk of losing his property in consequence of enjoyment by another for the prescribed period, they seem to declare the law of extinctive or restrictive prescription, thereby casting doubt upon the title and the evidentiary value of the documentary and the oral evidence being weakened by the adverse enjoyment. Another way of looking at it may be that these rules lay down that until the expiration of the prescribed period, there is a risk of losing the property whule after such expiry, such risk becomes established.

A far fetched and unsupported explanation is offered by Vignaneswara, of Yagnavalkya’s text about the loss of produce during the time of the adverse enjoyment. He himself has recognised ways of acquisitive prescription is respect of movable property. Narada and Hareeta recognise legal ownership with enjoyment for three generations, even if the original possession was unlawful. In excluding certain properties from the effect of adverse enjoyment as an exception to this rule, Yagnavalkya happens to adopt the rule of Manu cited above.

Length of Possession :

For lawful possession to ripen into legal ownership, the ownership duration must be of a sufficiently long duration. Brihaspati prescribes a minimum duration of 35 years, which is roughly the period for one generation. Vyasa keeps it at 20 years. The classification of enjoyment according to the number of generations as covering the duration of enjoyment in the ascending order is done by both. Enjoyment exceeding three generations will be taken as immemorial enjoyment. As against the adversary, who claims the property, the first usurper needs to prove his title, even though possession alone may be sufficient in case of sons and grandsons of the adversary.[79] A presumption of legal origin, not requiring further proof of legal title, is created by immemorial enjoyment of three or more generations. Narada and Hareeta go to the extent of saying that such immemorial enjoyment even though unlawful should not be disturbed.

Proof of Possession : Oral evidence of the actual tillers of the land, of the villagers, neighbouring landowners, or anyone similarly situated, is the best proof of possession, or it may be proved by documents.

ORAL EVIDENCE

Testimony of the witnesses is the second method of human proof.

Witness and their characteristics:

A person other than the party to the dispute, having some knowledge of the concerned transaction can be termed as a witness.[80] As per Manu, a person becomes witness when he has either seen or heard something related to the matter.[81] Witnesses may be classified into two kinds:-

1.  कृत Krita (chosen)
2. अकृत Akrita (casual)

As per Narada, Krita witnesses are of five kinds and Akrita witnesses of six kinds.[82]

The Krita witnesses are:

1. लिखित Likhita- A witness brought to attest a written instrument. He will be called Likhita if he is a signatory himself. One who cannot write his name for himself or whose name is written by others will be called Lekhita.
2. स्मारित Smaarit- A witness who has been asked to witness a transaction specifically and is reminded every time the transaction takes place.
3. यदृछागत Yadrichchaagata- A witness who comes casually during the course of the interaction.
4. गूढसाक्षि Goodhasaakshio- A witness who has been asked by the plaintiff to listen to the words of the adversary hiding himself or in disguise.
5. उत्तरसाक्षि Uttarasaakshi- A witness who has heard certain words that may amount to dying declaration from a person about to die or from a person about to travel abroad, and who is called upon to testify those words.

The Akrita witnesses, on the other hand, are:

1. King
2. Judge
3. A person authorised to do an act
4. A person deputed by the plaintiff
5. In matters affecting family, members thereof
6. Villagers.

Excepting those who have attested by documents, the credibility of each of the Krita witnesses is gauged by a time limit. Witnesses to a document may be believed even after any lapse of time. Smarita witnesses cannot be believed after eight years; yadrichchaagata witnesses after 5 years; goodhasaakshi witnesses after 3 years; and Uttarasakshi witnesses after expiry of one year. However, this rule appears to be rather directory than mandatory as generally, the unimpaired power of memory and mental capacity of a witness may also have to be taken into account, in which case the testimony will have to be accepted even after any given length of time.[83]

In cases of theft or murder taking olace in a village or in boundary disputes, the villagers are the necessary witnesses among the Akrita witnesses. Previous decisions of the Court may be required to be proved by the Judges as well as the members of the judicial assembly. In the case of any matter coming to the notice of the King in the course of any inquiry, even the king may be obliged to give evidence, even though remaining ordinarily exempt. Anyone deputed to do an act out of confidence by consent of both parties or anyone employed as common agent of both is also eligible as Akrita witness. Witnesses may be chosen from amongst the members of both parties’ families who appear to be impartial and owe allegiance to Dharma.[84]

Number and quality of the witnesses:-

In the usual course, there must be at least three witnesses who are guided by the principles of Dharma, who owe allegiance to and abide by the duites of the Veda and Smriti, who are straightforward, who bear no ill-will, who have good understanding, who perform Prayaschita (penance), who are born of good family.[85]

On agreement between the parties, even one or two persons well versed in Dharma may be taken up as competent witnesses.[86] Out of the Likhita and the Goodhasaakshi witnesses described above, two witnesses may suffice.[87] A person not affected by a dubious character or if his testimony is not vitiated by previous contradiction, may be a competent witness in case of actions related to theft, adultery, violence, insult, preference being given to witnesses of the same class and caste.[88] For matters involving women, women witnesses are preferable.[89] Members of the respective guild should be chosen in case of disputes involving the merchant class.[90] Only in absence of these can other persons be also examined, subject however, to their grounds of incompetence, if any.

Grounds of incompetency:-

There are five main grounds of incompetency which arise from:

1. वचन Vachana – Written authority.
2. दोष Dosha– Incompetency of character or mind.
3. भेद Bheda– Contradictory statements
4. स्वयमुक्ति Svayamukti– Volunteering of evidence
5. मृतान्तर Mritantara- Witness becoming ineligible after death of either party, who had chosen him as witness or on account of the non-existence of the thing for which he was cited.[91]

A person following the Vanaprasthashrama, a wandering ascetic or yogi, a person engaged with Vedic rituals are not to be cited as witnesses, according to written authority. The king is exempt from giving evidence. Interestingly, artists and sculptors too were not considered competent witnesses because of their natural affinity for acquiring wealth and the sway pecuniary considerations might hold over them.[92]

Defect in mind affecting the cognitive faculties of a person, such as the capacity to observe or understand properly, to express correctly also leads to exclusion from the lsit of competent witnesses. Therefore, children below sixteen years of age, persons above the age of eighty years are incompetent. So are the persons of unsound mind who are in mental distress or affected by leprosy, drunkards, etc. Interest, whether direct or indirect, towards either party may lead to a defect of character, or what we today call as the impeachment of the credibility of a witness. Persons having apparent or obvious bias, such as those having an interest in the subject matter, dependants of either parties, enemies, etc, should be avoided. Persons considered inherently bad in character such as thieves, Chandalas, quareling sons, persons with brutal instincts, gambling addicts, perjurers, men accused of heinous crimes, forgers, should be excluded.[93]

A detailed list of persons following particular professions who should be excluded and those who are considered undesirable has been specified by Narada.[94] Anyone not being a friend or enemy of either party may be examined in case of absence of the qualified or desirable witnesses.[95] In cases of offences involving violence, causing danger to life, acts committed inside home or forest, such rules relating to competency of witnesses may have to be relaxed. Even in such cases, however, Narada refuses to consider the evidence from children, relations, perjurers and forgers. His basis for such refusal is that children are too immature, whatever the situation may be; relations are always subject to some level of partiality and that perjurers and forgers are inherently deceitful.[96] Where such disqualifications affect the matter, or appear in a minor degree, their evidence may still be received with caution.[97]

Examination of witness was only allowed to the party citing a particular witness. Only his relations and other authorised on his behalf may also examine the witness. A witness may be held guilty of volunteering evidence in case of being cited by one person but being examined by another.[98] According to a strange rule appearing Sukra Neeti, a person who voluntarily gives evidence as a witness when he is neither summoned nor cited, will be liable to punishment irrespective of the truth of his evidence.[99]

Production of oral evidence:-

Same rules applied in securing the attendance of the witnesses as the appearance of the opposite party, as mentioned earlier. Rules applicable for compulsory appearance of parties are applied to the witnesses as well to some extent. Purushabhriti was the fee paid to the witnesses summoned. A travelling allowance, according to the amount of the suit, not exceeding 1/8^th of the amount in any case, was also given to the witnesses. The amount so spent on the witnesses was eventually recovered as costs from the defeated party.[100]

Before examination of the witnesses, the competency was settled. The apparent or the prima facie disqualification or defects in character or mind in respect of the witnesses were liable to be noted by the Judge or the members of the assembly, whereas the latent defects were there for the opposite party to point out,[101] same as in the case of documentary evidence. Similarly, it was only before the conclusion of the trial that all objetions about the competency of the witness could be brought out. Later discoveries could not disturb the decision. Quality of the oral evidence adduced could not be brought out as a ground to impeach the soundness of the judgment.[102] These prohibitions were applicable to both, the credibility as well as the competency of the witness. The answers by the witness to questions of competency or his character were recorded. The same punishment was applicable to any irresponsible attempt at discrediting a witness as on a false witness.[103] In case of any discredited witnesses, they were simply discarded and the trial continued without their presence. If no proof, other than the proof of the discredited witnesses was available with a party, it was deemed that the party had failed to substantiate his allegations.

Mode of recording evidence:-

After the completion of the preliminary examination of the witnesses, those witnesses who had been summoned and were present, having been informed of the consequences of not speaking the truth, were questioned in the presence of both the parties.[104]Having sworn the witnesses that they shall speak only the truth in the presence of the Deva and the Brahmana, the Pradvivaka had to question the witnesses one by one.[105]

Manu has prescribed the method of swearing. For Brahmans, it was told that that his merit of truthfulness shall perish if he does not speak the truth; for Kshatriyas, their vehicles and weapons would become powerless and ineffectual if they swerved from truth; for Vaishya, his cattle and produce would be devoid of any fertility; for Shudra, all kinds of would be invoked if he spoke anything false.[106]

Any person from the three higher Varna would be nonetheless would be treated as a Sudra for the purpose of swearing in case he was following the profession of trade, tending to cattle, service under any master, usury, etc.

Shudra witnesses speaking that which is not true shall invite the sins of Pataka, Upapataka and Mahapataka; the worlds which await those who set fire, or kill women and children, shall receive them, and that, in addition, the spiritual merit acquired by them in former births shall go to the person who suffers because of the false evidence.[107] Narada points out that such exhortations were used to frighten the witnesses in speaking only the truth.[108]

The witnesses had to be questioned either before the assembly, o in case of immovable properties, on its precincts or in view of any other subject matter which is the object of dispute.[109] Evidence was to be recorded in the presence of the corpse or in its absence, in view of any of its limbs, in cases of killings. Evidence was to be taken in the presence of both the parties and not secretly in all the cases and the examination of witnesses should not have been delayed unnecessarily.[110]

The witnesses were not to be pressed for the same matter over and over again and the answers provided naturally were to be noted down.[111] In actions involving tangible property, the answers were to neither fall short, nor exceed the question asked and should have been pointed. In other cases, these may be accepted however. Inaccuracy with respect to age, caste, money, time, place or any such important factors would largely impair the value of the evidence.[112]

Mode of appreciation of evidence :-

The statement of the larger number was to be accepted in case of difference between two sets of witnesses. Persons worthy of credit were to be trusted for their statements in case of the number being equal, and among those so worthy of credit, those superior by their virtue of the abovementioned qualifications would be deserving of more credence.[113] Evidence of even a few worthy witnesses was held higher in value than that given by a larger number, but unworthy of credit. A general disqualification applicable to all witnesses aike was the account of previous contradictory statements.[114]

Rules of proof by witnesses :-

Only when the witnesses speak to it as true, is a cause said to have been proved. When they disprove it as false, it is said to fail.[115] When, owing to lapse of memory, witnesses are unable to prove or disprove, other modes of proof might be resorted to. In the following verse from Yagnavalkya, where one set of witnesses speak of a particular fact, but witnesses who are rather trustworthy, speak of another, the former will be said to be perjured:

उक्तेSअपि साक्षिभिस्साक्श्ये यद्यन्येगुणवत्तमाः |

द्विगुणावान्यथाब्रूयुः कूटास्स्युः पूर्वसाक्षिणः ||[116]

Whether a party is open to adduce more evidence after the first set of witnesses being examined and him not being satisfied, might perhaps be doubted. Narada clearly says that on the decision of a matter, fresh evidence cannot be adduced. Katyayana is of the view that the evidence of a party shall be tested by a Judge as well as the assembly, the proof becoming clear only on such test and not otherwise. Favour to one party or another would not make the proof clear. In absence of any explanation for showing the evidence to be false, the matter or the cause itself must be held to be false.

Therefore, a party is fully entitled to adduce further evidence if not satisfied with the initial evidence, provided the further evidence sought to be presented must have been intimated, even though not available at that time. Witnesses may be examined in preference to divine proof, even if there has been no intimation of the names of the witnesses. However, in the absence of these, divine proof would be resorted to as a last resort. No further proof would be adduced afterward.

Even though an interpretation to this rule is applied to the effect that it permits the defendant to adduce more trustworthy evidence on finding the witnesses cited by the plaintiff supporting the plaintiff’s case, Vignaneswara does not hold it to be good as he says that the defendant has usually no case to prove. There is usually denial of the allegations of the plaintiff and the denial does not admit of proof by witnesses and it is the plaintiff who has to ultimately prove his case.[117]

Refusal to give evidence :-

A witness, who having been sworn does not answer a question put to him for a period of 45 days, shall be liable to pay the entire debt with interest along with 1/15^th of interest of that amount. The creditor shall be paid the entire amount and the king will take 1/10^th part as fine.[118] As per Manu, additional time shall be granted to a witness who is prevented by any act of God or State or from affliction of disease from giving such evidence, and such witness shall be allowed a further period of additional three fortnights, post which he will be liable to punishment.[119]

A person, who despite being well acquainted with the facts and circumstances of a matter, refuses to give testimony shall merit the sin of persons having perjured themselves (कूटसाक्षि) and shall be liable to the same punishment.[120] The findings on the basis of such evidence is liable to be set aside on review if so discovered.[121]

A fine was to be inflicted on the witness who refuses to give evidence after the others have deposed owing to ill-feeling or other cause. The fine was to be eight times the fine inflicted on the unsuccessful party.[122]

A Brahmana unable to pay the fine was to be banished from the country preceded by acts of public humiliation. For others unable to pay the fine, they were to be compelled to do work suitable to caste or occupation or be put in jail bound in chains. Even in case of fines inflicted for giving false evidence, this rule was imperative to be observed. Persons making contradictory statements with a view to nullify the effect of their testimony were also liable to be punished. Any secret meeting with a witness cited by the adversary was to be avoided and anyone found doing so was liable to lose the case, according to Narada.[123]

Punishment for false evidence :-

Persons procuring false evidence by offering inducements like money or persons so giving false evidence accordingly were both liable to punishment which was double of that inflicted on the defeated party in the case.[124] A Brahmana committing such an act was to be exiled. When the motive for giving of false evidence was not ascertained or when it wasn’t a case of habitually giving of false evidence, this was the ordinary rule applicable.

For two special cases, however, Manu lays down the following rules. On account of greed of money if flase evidence has been given, punishment was a fine of 1000 pana (पण), or coins of copper, where it was owing to any kind of misapprehension, punishment was laid down for Poorvasahasa (पूर्वसाहस); where owing to fear, punishment of Madhyamasahasa (मध्यमसाहस); where it was on account of ignorance, it was 200 pana and 100 on account of youth. In cases of habitual offenders for giving false evidence, similar punishments were to be observed.[125]

The three lower Varna were to be punished with fines as aforesaid in addition to the corporal punishment. Loss of life, cutting off the tongue, cutting off the lips, etc. were all parts of the corporal punishment, depending on the nature of the false evidence.[126]The Brahmana, along with the prescribed fines, had to suffer stripping of clothing or deprivation of the house. According to the castes involved in the matter or the amount involved, the different forms of punishment varied. If the dispute is of a trivial nature, the Brahmana is only liable to fine, as in the case of a Kshatriya, where the motive for false evidence is not ascertained or where there is a casual insistence of false evidence. Banishment was meted out in more serious cases.[127]

When false evidence is permissible :-

There was always a prohibition on the giving of false evidence as well as the refusal to give evidence. In case of persons who were liable to be condemned to death when a witness shall not speak the truth and may even speak that which is not true, there was an exception to this prohibition.[128] Not giving evidence was permissible by allowance of the king, where in matters involving offences based on suspicion, giving of true evidence will entail death of a third party. On insistence of the king, the evidence would be rendered futile by contradiction. [129] It was laid down by Manu, that false statement was permissible in certain situations, for instance, loss of life, total deprivation of property, in joking, or in relationship with women.[130]

Circumstantial Evidence (असाक्षिप्रत्यय)

There are six instances of circumstantial evidence mentioned by Narada. An inference of commission of a crime arises where there is found to be possession of a torch in case of mischief by fire or possession of an instrument in cases of grievous hurt. Adultery may be suspected on the basis of a man found dallying with the hair of a woman. A person with a hoe in his hand near a bridge just damaged may be held liable for such damage. A man emerging from a forest with an axe in his hand may be liable for the felling of trees in that forest. Presence of distinctive marks or injuries may raise an inference of assault.[131]

Similarly, possession of stolen property may amount to prima facie proof of theft, as per Sankha and Likhita. A caution, however, is further added that these should not be accepted without further scrutiny and other corroborative facts as these injuries might have otherwise been self inflicted.[132]

लेख्यप्रमाण Lekhya Pramana (Documentary Evidence)

In the human forms of proof—Maanushika Pramana (मानुषिकप्रमाण)—proof by evidence of possession and of witnesses have been dealt with. The third such form is the proof by documentation called Lekhya Pramana.

Lekhya, or documents, in this respect, were considered to be of two kinds:-

1. Rajakeeya (राजकीय), the public documents, and
2. Jaanapada (जानपद), the private documents.[133]

Public Documents-

Public documents were of four kinds:

1. Shaasana शासन-Grant;
2. Jayapatra जयपत्र-Judgment or decree;
3. Aagyapatra आज्ञापत्र- Order;
4. Pragyapatra प्रज्ञापत्र-Request.[134]

Shaasana documents or grants related to gifts of land or revenue. Gift of revenue was called Nibandha. It was usual to insist on the grant of land or revenue during times of conquest or treaty by one sovereign with another. For the gift of revenue, the form of a document was there whereby working classes, agriculturists and the merchants were directed to make contributions, yearly or monthly, towards charity, learned Brahmans or for temples. Copper plates or tablets with the signature and seal of the king were used as inscriptions for these grants, which contained full description of the grantor and the grantee, along with the conditions and objects of the grant.[135] Only the seal and signature of the king along with the name of the scribe was contained in the grants made by the king.[136]

The Jayapatra was awarded to both the successful and the unsuccessful parties in a matter, for the purpose of ensuring the rights of the successful party and for the purpose of collecting fines from the unsuccessful party. With reference to contested judgments, the term Paschaatkaara (पश्चात्कार) is used with reference to contested judgments by Katyayana, even though the term Jayapatra signifies in general all judgments. Just like present day judgments, these Jayapatra contained the brief facts of the case, the evidence adduced by both the parties, conclusions of the assembly with the reasons thereof. The President of the assembly or of its members, or of the king, were required to be written in their own hand.[137] The seal of the king was affixed before being granted to the party. Thus, these Jayapatra, with the seal and signature of the king, were proper evidence of the matters contained therein.

The other kinds of public documents—Aagyapatra and Pragyapatra—relate to the orders issued by the king to his servants or requests to the spiritual seers or priests and other venerable persons.

Private Documents-

Laukika or private documents were classified either as Svakrita स्वकृत-written by self without any attestation, or Anyakrita-written by another and attested by witnesses.[138] The latter is invalidated in case of absence of attestation. These documents must be intelligible in language and written in clear characters.[139] They must specify the following:-

1. Year
2. Month
3. Paksha (Solar half or lunar half of the month)
4. Date
5. Names of the obligor and the obligee and their fathers
6. Their caste and Gotra
7. Other particulars about the amount lent, rate of interest, and time of repayment, etc.[140]

The obligor had to state above the signature at the end after execution, that the execution was done with his consent. Witnesses too had to sign giving their father’s name and by stating that they were witnesses to the transaction. The executant or the witness were to get another witness to write for them if the executant or the witness were unable to write.[141] At the end, the writer of the document had to give his description, stating that it was written by him with consent from both parties.[142]

According to Vyasa, there were eight kinds of private documents. Vyasa and Brihaspati enumerate ten varieties by including two kinds called Svakrita and Anyakrita as Svahasta and Cheeraka, along with the eight of Vyasa, viz.:

1. Upagatasangyita उपगतसंज्ञित- Receipt,
2. Aadhipatra आधिपत्र-Mortgage,
3. Krayapatra क्रयपत्र- Sale
4. Sthitipatra स्थितिपत्र
5. Sandhipatra संधिपत्र
6. Vishuddhipatra विशुद्धिपत्र
7. Vibhagapatra विभागपत्र-Partition deed
8. Daanapatra दानपत्र-Gift Deed
9. Daasapatra दासपत्र-Slavery Bond
10. Seemavivaadapatra सीमाविवादपत्र-Document settling boundary dispute.[143]

Documents were insisted on as placing the dispute beyond all doubt if in case dispute should arise again in the future, in all these private transactions.[144]

Non-production of documents: – In cases where the document was not available for settlement of the future dispute between the parties, it was renewed with the consent of both parties. The document’s unavailability might be because of being kept in a distant country, because of being of unintelligible characters or language, or becoming faded, being lost, burnt, stolen, torn to pieces, or mutilated.[145]

It could have been renewed under such circumstances, if the other party was willing to do it. If that wasn’t the case, the other party was to be given sufficient time for its production, in order to settle the dispute.[146]

The document was to be proved by the evidence of the witnesses who had attested it in case of it being in an inaccessible place, or being lost or destroyed.

contd…(Chapter:3)

---

 

BIBLIOGRAPHY

1. Vedic Texts

• Rigveda and Yajurveda Samhita– Pandit Damodar Satvalekar’s Commentary, Swadhyay Mandal Prakashan, Pardi.
• Taittiriya Samhita– Aanandashrama edition with the commentary of Saayana.
• Shatapataha Brahmana-edited by Weber.
• Chhandogya Upanishad-with commentary of Shankaracharya, Geetapress Gorakhpur.

 

2. Sutra Texts

• Apasatamba Dharmasutra-with the commentary of Haradatta, published at Kumbakonam.
• Apastamba Grihyasutra-with the commentary of Sudarshanacharya, Mysore Government Central Library Series.
• Asvalayana Grihyasutra-with the commentary of Narayana, Nirnayasagar Press.
• Baudhayana Dharmasutra and Gautama Dharmasutra–

Anandashram Press.

• Vasishtha Dharmasutra-ed. by Dr. Fuhrer, Bombay Sanskrit Series

3. Smritis

• Brihaspati Smriti-Anandashrama Press.
• Katyayana Smriti– reconstructed by PV Kane.
• Manu Smriti– with the commentaries of Medhatithi Govindaraja, ed. by V.N. Mandlik.
• Yagnavalkya Smriti-with the commentary Mitakshara of Vijnaneswara, Nirnayasagar Press.

4. Commentaries and Digests

• Dayabhaga– Jimutvahana, ed. by Pt. Jivananda.
• Medhatithi-vide Manusmriti.
• Mitakshara-Vijnaneswara, Nirnayasagar Press.
• Smritichandrika-Devanna-Bhatta, ed. by J.R. Gharpure.

5. Other texts

• Kautilya’s Arthashastra-Dr. Shama Shastri Edition, Mysore University Oriental Library.
• Nirukta-Yaska, ed. by Roth.

6. Books

• History of Dharmasastra (All Vols.)-Pandurang Vaman Kane, Bhandarkar Oriental Research Institute.
• A Dharma Reader: Classical Indian Law-Patrick Olivelle, Columbia University Press.
• The Spirit of Hindu Law– Donald R. Davis, Cambridge University Press.
• The Dharmasutras: The Law Codes of Ancient India– Patrick Olivelle, Oxford University Press.
• The Classical Law of India– Robert Lingat,, Munshiram Manoharlal Publishers.
• Jurisprudence, R W M Dias, LexisNexis, Fifth Edition.

[13] YagSm. II.1.1.

[14] Vijnaneswara, SS Setlur (Ed.), The Mitakshara, Brahmavadin Press, Madras, 1912, p.107.

[15] YagSm II.1.2.

[16] Brihaspathi.

[17] Smriti Chandrika, Mysore Edition.

[18] Yag. P. II Ch 1 v 3

[19] Sukra Nithi, V.5.18.

[20] Smriti Chandrika, p. 41.

[21] Mit, p. 135.

[22] Mit, pg 137.

[23] Nagendranath Law, Ancient Hindu Polity, v. 1, Longmans Green and Co., London, 1914, p. 19-20.

[24] Samavartha.

[25] According to Narada and Manu.

[26] YagSm II.2.32.

[27] YagSm II.2.31.

[28] NarSm II.306.

[30] Vincent Smith, Early History of India, 3^rd Edition, Atlantic Publishers, 1999.

[31] NarSm I.27.

[32] Mitakshara, page 109.

[33] YagSm. II.2.18.

[34] ManuSm VIII.4-7.

[35] ManuSm, VIII.4-7.

[36] NarSm I.20-25.

[37] NarSm I.10.

[38] YagSm II.2.19.

[39] NarSm I.5.11-12, 26-29.

[40] YagSm II.I.6, SmCh p 72.

[41] Mit p 110.

[42] NarSm I.48.

[43] NarSm I.51.

[44] Sukra Niti, Ch. 4, Sub Sec. 5, v. 119 &120.

[45] NarSm II.23.

[46] Mit p. 112.

[47] Sukra Niti. Ch. IV Sub Sec. V. 113.

[48] SmCh p. 78.

[49] Mitakshara, pg 111.

[50] YagSm II.I.6.

[51] Mit p.111.

[52] Smriti Chandrika p. 84.

[53] SmCh p. 83.

[54] Katyayana.

[55] Mit p. 112.

[56] SmCh p 91.

[57] Mit p.112.

[58] YagSm 2.1.7.

[59] BrSm 1.44.

[60] Arth. Book III, Ch. I.

[61] Prajapati; SmCh p. 96.

[62] YagSm 2.2.22.

[63] Katyayana and Mitakshara p. 123.

[64] Mit pp. 123 and 124.

[65] SmCh p. 120.

[66] SmCh p.122.

[67] Mit p. 124.

[68] NarSm IV. V.77.

[69] YagSm 2.2.27.

[70] “Deer, cow and kid must be accepted by holding the tail; elephant by holding its trunk; horse by holding its manes. According to Asvalaayana, living things must be accepted by uttering some sacred hymns or auspicious words and by touch in the case of inanimate objects. In the case of moveables. All the three kinds of acceptance are possible. But in case of immovable property physical acceptance is impossible unless it be by enjoyment of its usufruct. Therefore, the rule says that mere title created by sale or gift without even slight enjoyment so as to indicate acceptance of ownership is not complete and cannot prevail as against title accompanied bu sich enjoyment. This rule operates also to determine priority between two conflicting titles the dates of which are not know, in which case, the one with possession prevails over the other without possession. If the dates are known, the one prior in date ought to prevail even though devoid of possession. This rule is also understood by Vigneswara as determining the relative merits of the three kinds of human proof in certain cases. When the title of the original owner has been proved by witnesses, it ought to prevail over mere present possession except in the case of inerited property. In the case, however, of inerited property, the fact of inheritance, from generation to generation is of greater evidentiary value than proof furnished by documents or by third parties. In the case of titles without possession, the one with possession is of greater validity than one without possession.

[71] YagSm 2.2.24.

[72] SmCh, p. 161.

[73] NarSm 4.76.

[74] Mit p. 125.

[75] ManuSm 8.143.

[76] ManuSm 8.146.

[77] ManuSm 8.149; YagSm 2.2.25.

[78] SmCh p. 58.

[79] SmrCh, p. 195.

[80] Sukra Neeti, Ch IV, Sub Section V v. 182.

[81] ManuSm 8.74.

[82] NarSm 4.149.

[83] SmCh p. 185.

[84] SmCh p. 175.

[85] YagSm 2.5.68-69.

[86] YagSm 2.5.72

[87] SmCh p. 174.

[88] NarSm 4.154.

[89] ManuSm 8.68.

[90] NarSm 4.5.155.

[91] NarSm 4.5.157-162 & SmCh p. 187.

[92] Smriti Chandrika p. 178.

[93] YagSm 2.5.70.

[94] NarSm 4.182-186.

[95] NarSm IV.190.

[96] NarSm IV.189-192.

[97] A Mritantara witness was one who had been cited by a plaintiff or defendeant as a witness to any transaction and who was subsequently rendered ineligible either on account of the death of the party who had cited him as a witness or on on account of the non-existence of the subject matter. This was done either at the time of the death or on other occasion. These witnesses however became competent when the suit was allowed to be continued by the sons or grandsons of either party. In cases of bailment and debts due to the deceased, these witnesses became competent when disputes about them cropped up.

The testimony of witnesses at variance with their own previous statements or with those of other more credible witnesses cannot be accepted. It is in this sense that they are regarded as incompetent.

[98] Katyayana and Smriti Chandrika pg. 189.

[99] Sukra Neeti Ch IV Sub section V v. 196.

[100] Arth. 2.1.

[101] SmrCh p. 191.

[102] Brihaspati and Katyayana.

[103] Brihaspati.

[104] ManuSm 8.79.

[105] YagSm 2.2.73-75.

[106] ManuSm 8.88; NarSm 4.199.

[107] Yagnavalkya Smriti Part II Ch V v 73 to 75.

[108] Narada Smriti Ch IV v 200.

[109] Smriti Chandrika pg 206.

[110] Sukra Neeti Ch. IV Sub. Sec V. v. 198.

[111] Mit p. 185; Katyayana and SmCh p. 208.

[112] SmCh p. 209 and 210.

[113] YagSm 2.5.78.

[114] Mit p. 154.

[115] YagSm 2.5.70.

[116] YagSm 2.5.80.

[117] And besides, the burden of proof depends upon the nature of the defence set up. Though the burden of proof is on the defendant in pleas of confession and avoidance and res judicata and on the plaintiff in pleas of denial, still according to the rule there can only be one kind of proof for such action the above interpretation is untenable. Vignaneswara thinks it may be interpreted in a third way. When both the plaintiff and defendant claum a certain property as having been got by inheritance without specifying when it was acquired each may adduce evidence of his title. In weighing the evidence on either side the evidence of the defendant may be preferred if it is superior in quality to that adduced on the plaintiff’s side. Here there is no proof of denial and it does not offend against the rule of burden of proof varyin g according to the nature of the pleas. Doube proof is no doubt not permissible in a single action but when the action itself is of a double nature such double proof is permissible. He is of opinion that even such an interpretation is opposed to the spirit enunciated by Yagnavalkya. A similar rule laid down by Katyayana is interpreted by the author of the Smritichandrika as applying to cases of review.

[118] YagSm 2.5.76.

[119] ManuSm 8.107.

[120] YagSm 2.5.77.

[121] ManuSm 8.117.

[122] YagSm 2.5.82.

[123] Mitakshara pg 158; Naradasmriti Ch. IV v. 165.

[124] Yagnavalkyasmriti Part II Ch V v 81.

[125] Manusmriti Ch VIII v. 120-122.

[126] Manusmriti Ch VIII v. 125.

[127] Mitakshara pg. 157 and Smriti Chandrika pg 215.

[128] ManuSm 8.104.

[129] YagSm 2.5.83.

[130] ManuSm 8.112.

[131] NarSm 4.172-176.

[132] SmrCh p. 221.

[133] Mit p. 159.

[134] Vasishta as quoted in SmCh p. 125.

[135] SmCh p. 126.

[136] Vyasa: SmCh p. 127.

[137] Vyasa and Brihaspati

[138] NarSm 3.135.

[139] NarSm 3.136.

[140] YagSm 2.8.84-111.

[141] Naradasmriti

[142] YagSm 2.7.85-88.

[143] Cheeraka was the name applied to documents written by recognised document writers of any place. The Upagata was usually written by the person making the payment and signed by the person receiving it. The Sthitipatra was an agreement entered into between merchants, townsmen, and other collection of individuals fixing a certain mode of conduct among themselves. Vishuddhipatra was a document awarded to a party who underwent certain purificatory ceremonies for some offences. Dasapatra was a bond executed by a man having no food or raiment in a forest to another agreeing to do certain acts.

Seemavivaadapatra settled boundary disputes and was perhaps in the nature of a plan. The other documents evidencing gift, sale, and mortgage do not call for any description. Partition deed entered into with the consent of all the sharers and attested by witnesses alone is valid. Otherwise even if the father himself executes it, it is not valid. According to Sukraneeti, the other private documents relating to gift, sale and purchase of immovable property also depended for their validity upon the consent of co-shareers and the attestation of the chief men of the village.

[144] It follows, therefore, that a person receiving a gift should not write the gift deed himself nor should a creditor write the debt bond. On account of their usefulness in terminating future dispute, documents were permitted to be renewed, whenever necessary.

The Swakrita document written by the obligor himself, though, unattested, by witnesses was proper evidence unless it was brough about by force or faurd or fear or intoxication and such other causes, (per Yagnavalkya Smriti Pt. II Ch. VII v. 91).

According to Narada, documents written under such circumstances as well as those executed by women and children were not proper evidence (Narada Ch. III v. 137). These invalidating circumstances applied to Anyakrita documents as well.

See Smriti Chandrika pg 138.

[145] Yagnavalkya Smriti Pt. II Ch. VII. V. 91.

[146] Mitakshara pg 162