(This is 3rd part (part 1st, part 2nd) of a long article being published in series here. 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.)
TABLE OF CONTENTS
- DETAILED INTRODUCTION
- THE CONCEPT OF DHARMA
- SOURCES OF LAW
- ADJECTIVE LAW
- CONSTITUTION OF THE COURTS
- VYAVAHARA (DISPUTE)
- INSTITUTION OF ACTION
- PRAMANA (PRINCIPLES OF PROOF)
- LAW OF PROPERTY AND CONTRACT
- POSSESSION, OWNERSHIP AND PRESCRIPTION
- BOUNDARY DISPUTES
- DEBTS, PLEDGES AND SECURITIES
- DEPOSITS AND TREASURE TROVE
- WAGES, HIRE AND COMPENSATION
- LAW OF COMMERCE AND COMPANIES
- CRIME, PENANCE AND PUNISHMENT
- RELIGIOUS TRANSGRESSIONS
- THE PRAYASCHITTA (PENANCE)
- SECULAR CRIMES
- PROPERTY CRIMES
- OTHER CRIMES
- BLOOD MONEY
- FAMILY LAW
- FORMS OF MARRIAGE
- SONSHIP AND ADOPTION
- THE JOINT FAMILY
LIST OF ABBREVIATIONS
|Kane||…||History of Dharmashastra, by P.V. Kane|
|Mit||…||Mitakshara, commentary on the the Yagnavalkya Smriti|
|Panini||…||Ashtadhyayi of Panini|
LAW OF PROPERTY AND CONTRACT
3.1 POSSESSION, OWNERSHIP AND PRESCRIPTION
Ownership and possession were fully distinguished in Classical Hindu Law. The derivative of Bhuj-‘to enjoy, use, possess’ and the pronoun Svam ‘self’ was used to depict possession, whereas, its derivatives such as Svamin (owner), Svatva, Svaamya and Svaamitva (right of ownership), as well as other substantives such as Dhana, Dravya, Rikta, etc. used in the sense of ‘property, possession, inheritance’ serve to express ownership. Even in very ancient times, the essence of ownership has been subject to great philosophical inquiries.
The sources of the right of ownership have been mentioned, according to the Gautama Dharmasutra, as inheritance, purchase, partition, seizure (of unclaimed property) and finding, over and above which the Brahmans have the acceptance of presents, the Kshatriyas the spoils of the war or conquest and for the Vaishyas and Shudras, the wages of labour. The seizure of a property that is unclaimed, is of particular importance in this connection to establish ownership.
For these reasons, Manusmriti considers a person making a piece of fallow land arable by felling trees on it as the owner of the soil. In a similar vein, the hunted deer would belong to the person hitting it first; a person hitting it anytime later would have shot it in vain. Even merely by cultivating a field lying fallow for the time being, a person earns a certain right. In the inscriptions, Bhumichhidranyaayena is the expression used for such a case. As Jolly highlights in his work Hindu Law and Customs, ‘’it is clearly meant by this that the done is endowed with all the rights of him who makes a fallow land arable for the first time and this is exactly the view of the lawbooks.”
Somewhat similar rights upon a piece of land may be gained if remaining fallow for five or three years or at least for one year. Even though the legitimate owner may reclaim it eventually from the cultivator, the latter is, however, entitled to indemnity by the owner for his labour and to retain his profits.
As per other authors, inheritance, presents and the dowry of a wife are the only three means of livelihood common to all the castes. This classification is succeeded by another, probably of a later origin, as per which, there are
- Seven white means of livelihood, namely, religious learning, bravery, mortification of the flesh, dowry of a bride, teaching, sacrifice and inheritance;
- Seven spotted means of livelihood, namely, ledning money, agriculture, trade, the nuptial fee, crafts, service and wages;
- Seven black means of livelihood, namely bribe, gambling, hearing messages, causing pain, forgery robbery and fraud.
To a large extent, the manner in which the property been earned, would determine the profits gained by the employment of property, specially in sacrifices and other religious deeds. How little mere possession may give rise to the right of ownership is expressed in an oft-quoted text of the Smritisangraha:
“If anybody holds something in his hands, he does not thereby become the owner of it; does it not happen, for instance, in the case of stolen goods, that the property of one is found in the hand of another? Therefore, the right of ownership is to be ascertained not through mere natural observation but only by means of science (Shastra) for otherwise it cannot be said reasonably that the property of one has been taken away by another The legitimate means of livelihood, namely presents, booty, trade and service according to the order of the castes, have been separately enumerated in the science”
The conception of the true right of ownership being recognised and established only with the help of Shastra had taken root even at an early period in Classical Hindu Jurisprudence and philosophy but also a reaction set in already at an early period from the side of those who emphasised that even the means of livelihood enumerated in the Smritis are taken solely from the observation of daily life and after all, the legal rules of the Smritis like the laws of grammar, merely serve to exhibit and strengthen what is practised at all times and that therefore the right of ownership does not depend upon the science or the sacred laws (Shastra) but upon the experience of the world.
While Jimutvahana, Raghunandana, and other representatives of Bengal defended the religious scientific character of ownership, the theory of svatvam laukikam—ownership is temporal—is exhibited already in the Mitakshara, then also in the Viramitrodaya, Vyavaharamayukha, Smritichandrika, Sarasvativilaasa and other works of the south and the west. The Sarasvativilaasa makes an assertion that ownership originates only by worldly acts, and goes perhaps farthest in this direction, while the Mitkashara only emphasises the worldly effects of ownership.
Seizure of an unclaimed property mentioned above as one of the means of livelihood has to be distinguished from usucaption which takes place before the eyes of the owner with his permission. The general law is that a legitimate owner has his rights forfeited on a property when it comes into the occupation of another, and where there is no reclaiming by him within ten years. Ten years also appears to be the period of prescription. Despite such rules, it was regarded as dangerous and attempts were made to reduce its effect by incorporating as many exceptions as possible. Therefore, prescription was not allowed when the legitimate owner was either a minor or imbecile in spirit, as prescription presupposed a possibility of the claim of the legitimate owner.
In a similar manner, the rights of a man not present were to be preserved in cases of a student undertakes Vidya and performing observances abroad which occupied him for 36 years or a travelling merchant who returns home; only an adverse possession of fifty or more years will vest the right of ownership to the adverse party. In case of friends and relatives, it will never cease to apply. Therefore, emphasis is given in the law of inheritance that an heir coming from abroad, even though if he happens to be a descendant of a testator who had gone away in the third, fifth or even in the seventh generation, may claim his due share from the family members.
The essence of possession is that it should continue without interruption; only when proved by means of documents and witnesses that the house or field in issue was not Chinnabhoga, i.e., its possession was uninterrupted, can usucaption take place. For certain categories of proprietors, there was an advantage in law that their property was not subject to being lost in general through prescription. These categories were, princes and their officers, women, Shrotriya and ascetics, apart from the halfwitted and minor persons already mentioned.
Prescription was definitely not applicable to a lost, deposited or mortgaged property, neither were the concubines or the female slaves lost through adverse possession property and were subject to remain with their master.
In this respect, the issue whether possession extended over immovable or over movable property was of considerable importance. As per Gautama, real estate and animals too, besides the female slaves, were not liable to prescription. This rule reminds us of the assertion of the indivisibility of the immovables in the law of inheritance. Originally the only possession of value, the immovables should have under no circumstances, been lost to the family. However, “later authors often speak of the prescription of the immovable property; only according to the Yagnavalkya Smriti, its possession could extend over twenty years, that is, double as long a period as in the case of movable properties. Later Smritis generally advocate longer periods for usucaption and prescription; thus, Brihaspati speaks in general of 80 years and Katyayana of 60 years.”
Gradual development took place in the law of possession. If the possessor could prove purchase of the disputed property, either in present or in any other legitimate manner, he was entitled to be left in the safe enjoyment of the same.  There is, yet, another kind legitimate usucaption without any title of ownership, according to the later authors.
There is a connection between the tendency to prevent prescription and occupation of a family property by a stranger with the original indivisibility of it and is still observed today in the customary laws of the South. It is precisely this reason that the family property would be lost only post hundred years of adverse possession and that too uninterrupted; in case of interrupted possession, the property was to be handed over to the legitimate owner, even though he is also entitled to receive compensation. A buyer of mortgaged immovable property from the mortgagee, may consider it as his own property, free from any encumbrances, sixty years after, except in the case where the original proprietor has raised his claim repeatedly and prevented its being lost to himself.
The expression Khila has been still preserved in modern dialects to signigy fallow land. Only after the third year of bringing it into plough, will it be known as Kshetra. Particularly in the Punjab, the rights of the absent heir are carefully protected, and yet he is liable to make good the expenses his relatives undertook.
3.2 BOUNDARY DISPUTES
It is only for the historian to arrive at the solution whether chief form of ownership was private or communal than to decide on the religious or the secular form of ownership. Joint property of distant familial relations was quite in voifue; however, the traces of communal property of the village community are hardly definitve and the Smritis do not elaborate much on this point.
The village is undoubtedly the smallest unit of the scheme in which Smritis prescribe the management of a principality, and still forms a significant political unit. The Gramaadhipa or Gramani, stood at the head of the volage. It was a hereditary office, although the officers were appointed by the king. The authority of the criminal police, imposition or exemption of taxes on the farmers, and handing over of the tax collection was undertaken by such village headman.
The joint responsibility for the theft of cattle that was suspected to have been committed by any of the village inhabitants if the footmarks of the cattle could be traced within the village and nowhere outside the village, was borne by the inhabitants of the village themselves. Definite boundaries were marked for the village which cut it off from the neighbouring villages. Manusmriti and Yagnavalkya Smriti give certain rough measurements for a model village:
“In a wide circle round the village extends the pastureland; its breadth should be 100 bows, i.e., 600 feet, or more according as it is a large village or a city. On the pasture land, which on that account is reckoned among the indivisible properties, graze and wander the cattle of the inhabitants of the village under the surveillance of the cowherds who have to prevent the cows’ doing mischief to the adjoining fields.
On the other hand, the fields, mostly with hedges appeat always to have belonged to individual proprietors (Kshetrin, Kshetrika, Kshetrasvamin), who therefore, may demand compensation for injury done to their property”
The principle of ownership of the field serves as the theme of comparisons and it is specially indicated, when, for instance, it is said that if a seed carried off by wind or water into another field and there generates into a tree and bears fruits, the it becomes the property only of the owner of this field. In case of the fruits of two trees that grow on the boundary lines between two fields, the ownership should be of both the fields.
Ardhika, is the tenant of a field paying to the owner, half of the crops; idle tenancy was not allowed and such tenant was liable to be punished and to hand over the field to some other person for cultivation. Even though in Brihaspati certainorganisations are mentioned for joint cultivation of the soil, they have nothing really to do with the original joint possession of the fields as there is a recommendation by him of extreme caution in selecting these partners. Rather, there are two anonymous texts quoted in the Mitakshara which may be referring to joint ownership and the village community’s right of cancellation.
The best proof of the villages being in general, secluded from outside but inside, every village property being in evidence, is furnished by the rules of the Smritis relating to boundary disputes which surely would have been one of the common grounds of litigation. Here we had the boundary or the seema, maryaada, between two countries and villages as well as the boundary between houses and fields.
The boundary lines were either:
- Prakaasha- Visible, or
- Aprakaasha– Secret.
The boundary marks (setu)are meant, generally, by visible boundary lines, which are visible best in the summer during the times when the sun has scorched all plants and grass, according to the Manusmriti; the appropriate meaning of setu, apart from the popular usage for bridges, is ‘dike, ridge of earth’, as the dikes are especially mentioned as boundary marks and even today serve as indicators, in some places, as boundaries of a field.
Belonging to the category of visible boundaries, are natural boundaries too, particularly the rivers and hills which serve as dividers of two adjoining villages or countries. Tall trees, as for instance holy fig trees, palms bamboos, banyan trees are likewise pointed out and further shrubs and briers, heaps of stones, natural or artificial elevations, ant-hills, lakes, ponds, wells, cisterns, canals, streets, depressions, ditches, sanctuaries, temples, etc. serve the same purpose.
Bones, charcoal, stones, dried cow-dung, sand, ash and other such objects are secret boundary marks that are not easily destroyed by earth which are filled in pots and buried in the ground on the boundary lines. For this reason, such boundaries may be known as Naidhani Seema or the boundary of buried things. These secret marks depicting the boundary should be introduced by the elders to the children and passed on from generation to generation. For acts like encroaching beyond any adjoining boundary, or for shifting a boundary, severe corporeal punishments and fines are prescribed.
The matter of dispute between two neighbouring villages has been taken into consideration in the laws about the settlement of boundary disputes. Evidence was to be noted and boundary marks were to be searched in these cases, and the evidence of respectable and immemorial inhabitants was considered decisive, even if during that particular time, they were not actually in habitation there; next in line of importance, was the evidence of the neighbours or those who may have to stop by in that particular neighbourhood for sundry purposes, as cowherds, ploughers, hunters, snake-catchers, root-diggers, fishermen, etc.
As per the commentaries, on account of their changing and unstable mode of life, these people were in best position to know the boundaries of the villages which may often lie in the midst of wilderness or even waste.
In order still more to enhance the solemnity of the event the witnesses or the neighbours selected as arbitrators put on red robes and red garlands, sprinkled earth over their heads and in this pageantry visited the boundary and fixed it; otherwise a single person who enjoyed universal confidence was appointed for this purpose. Such an act had the character of an ordeal; it was therefore watched whether he who fixed the boundary was visited by any mishap within a short time in which case his decision was regarded as false. Attempts were made to secure dependable depositions by threats of high fines for giving false evidence. If the border people were bribed and intentionally gave false evidence, distant neighbours were to be heard. As a last resort, the king was to settle the boundary; according to Manu, the king was to be appealed to as a rule in all the boundary disputes and the names of the witnesses were to be entered in a document; the boundary document Seemapatra has also been mentioned elsewhere.
There was provision for a whole series of successive appeals in the case of disputes over a house or a field, namely, (1) the decision of the boundary dispute by the neighbours; if they were not unanimous, (2) by means of documents; (3) by the elders or other representatives of the village or the city or it was to be decided by (4)uninterrupted possession for ten years. The rules connected with the changes of a river-bed and the boundary between two neighbouring villages or fields along this river bed reminds us of the frequency of great floods in India: the gain or loss arising from it was to be taken quietly as a disposition of God just as a man could not resist a royal command; yet, however, if a piece of tilled ground was swept away by the floods and deposited somewhere else, it should have been left in the possession of the original proprietor till the harvest time.
There were special laws about the dikes (Setu) and wells on account of their importance, which along with a series of other rules with regard to policing were generally subjoined to the chapter on boundary disputes. If anybody constructed a dike on the land of his neighbour, the latter was not allowed to obstruct him if thereby only a little land was lost and the gain in water more than made up for the loss in ground. On the other hand, he who repaired an old and dilapidated dike without the permission of the owner of the field, was not allowed to use it; that could be allowed only after the death of the owner and his heirs and after having obtained royal permission.
The proprietors of two adjacent houses were to be careful to have due consideration for each other; thus, it was forbidden to construct or injure a veranda, window, drainage, pipe, or shop etc. or to construct a privy; a fire-place, a receptacle for leaving or to dig in a pit or to open a window or to drive a drainage pipe in the immediate vicinity of the neighbouring houses. A distance of at least three feet or two Aratni was to be observed. Also, public roads, bathing places, gardens etc. could not e misused, defiled or obstructed for similar purposes.
The movable property was differentiated from the real estate or the immovable (Sthaavara)., literally ‘fixed and motionless property’ which may consist of pieces of land, plantations, fields, woods, houses, etc. including however also rents out of a piece of land income from a donation (nibandha, vritti); most probably cattle was the most primitive form of movable property, particularly animals giving milk and beasts of burden and animals used for riding. The standpoint of the Veda that the cows were the proper medium of trade is still in evidence particularly in many Prayaschitta(s) and in the compensation for murder and then also in marriage. Yet metal money was predominant, particularly the already very old Karshaapana, as in the laws of punishments most of which were fines.The formulas of oaths and ordeals were regulated according to the value of the disputed object estimated in gold, and thus we find here a pure gold currency.
In contrast to assets (dhana), there is the liability ‘Rina’ (ऋण). The general significance ‘obligation’ is still retained even in the Smritis, and particularly in the theory of the three-fold debt consisting of sacrifices, raising of a son and the recitation of the Veda, which was to be paid to the gods, ancestors and the Raja respectively. On the other hand, the word Rina (ऋण), was already known in the Veda in the sense of an obligation of payment and in Indian arithmetic too the conception of ‘minus’ is expressed by Rina (ऋण) and plus by Dhana (धन).
‘Recovery of titles’ is the first of the eighteen titles of law; in most of the laws regarding procedure, complaints of debts are referred to in the first line and even the whole procedure of witnesses forms only a part of the law of debts in Manusmriti and Naradasmriti. The high antiquity of the law of debt is suggested also by its vigorous emphasis on religious motives; unpaid debts pursue the debtor even into his future birth, so that he was reborn as a slave in the house of his creditor in order to pay off the debt by his labour and the religious merit of his sacrifices and penances is transferred entirely to his creditor.
On the other hand, similarly from a religious standpoint, the trade of a moneylender and particularly that of the usurer (Vaardhushin) was regarded as immoral. Even in the extremity of distress, a Brahman was not to practice usury; the usurer was put on the same footing as the thiefand in a future existence he was to be reborn as an epileptic. Also taking interest apart from all other considerations, even without exceeding the allowed rates, was regarded as a means of livelihood of doubtful quality and according to Brihaspati, interest is called Kuseeda because it was extorted from a hard pressed man by a contemptible or a Kutsit (कुत्सित) person. Such means of livelihood was however permitted to the Vaishya and in Aapaddharma, the law in the time of distress, we find alon with the above mentioned prohibiton also the laxer view that in such times even the Brahmans may live by lending money at interest.
As usury could not be altogether stopped, it had to be limited as far as possible, and this the Smritis attempted to do particularly by rules about the limit of the permissible rate of interest and the length of the period for the accumulation of interest. It is a general opinion that where gold has been lent the interests in arrear cannot exceed the amount of the principal and that the interest stops as soon as this maximum is reached. Opinions are divergent regarding the maximum in the loan of other things which may be the result of the differences in local usages emphasised by Naradasmriti 1.105.
The interest paid in kind. According to the particularly detailed rules of Brihaspati, the accumulated interest in the case of clothes and base metals may make the debt treble, in the case of corns, fruits, beasts of burden and wool quadruple, in the case of vegetables quintuple, in the case of seeds and sugarcane sextuple, in the case of salt, oil, intoxicating drinks, sugar and honey the interest may make the debt octuplet, while in the case of grass, wood, brick, thread, stuffs from which spirituous liquor can be extracted, leaves, bones, leather, weapon, flowers, fruits, either (according to one reading) the interest may increase unlimitedly, or (according to another reading) no interest should be charged.
This extraordinary amount of interest is possible on account of the fact that the rate of interest is very high and according to a rule which Manusmriti ascribes to Vashistha and which is actually found in Vashishtha, the interest should be 1 ¼ percent per month, that is 15 per cent per annum; but if the debtor belongs to the lower castes and in the case of insufficient security, it may rise to 5 per cent per month, that is 60 per cent per annum, what according to Manu, is the maximum. Debtors of higher castes were to be favoured and the rates of interest decreased according as the debtor belonged to a high caste so that the Brahman had to pay only 2 per cent per month in the case of loan without security. If there was to be a particular risk, still higher rates were to be charged; thus merchants who wished to travel through wilderness were to pay 10 per cent and those who would make a voyage were to pay 20 per cent because in such loans even the principal was endangered; generally any interest voluntarily promised were to be paid by every man.
The law books seek to effect a limitation of usury also by forbidding certain particularly oppressive forms of interest and by declaring certain debts to be free from interest. Thus, Manusmriti forbids taking of interest beyond one year and also such as is unapproved i.e., according to the oldest commentaries, all short period interests, interest on interests, periodical or monthly payable interests, and usurious interests fixed on special agreement as well as body interests, i.e., those which would have to be worked off by physical labour of a man or an animal (kayika, according to another explanation daily payable interest). Of course this passage and other similar passages are in open discord with the rules of other law books. Manu himself permits compound interest in veiled form that in the renewed agreement the interests in arrear should be added to the principal and the same process is observed to this day. He also allows the working off of a debt.
Inter alia, the following are mentioned on which no interest can be charged: reward, gambling debts, improper promises, deposits, the price for a purchased ware, friendly loans particularly mentioned to be free of interest (uddhaara, which is explained as nishphalam rinam), and articles lent for use (yaachitaka), as well as the property of a woman (stridhana) used by the male relations with her permission, liabilities for securities, fines and the articles mostly of little value such as wood, grass, thread etc. Yet under certain circustances, eg. If a debtor refuses to take back the property generally after the lapse of a short period, interests could be charged on some articles of these categories and indeed at the rate of 5 per cent per month, which is another proof of universality of this rate of interest. A loan was free from interest also when the creditor refused to accept the due interest and particularly if the debtor deposited the interests with a trustworthy person.
3.4 DEBTS, PLEDGES AND SECURITIES
The liability for debts according to the principles of family and joint property extended over all the members of the family if the debt was incurred for the benefit of the whole family (kutumbaarthey), particularly however the responsibility lied on the chief of the household (kutumbin), and passed over to his heirs, and taking admission into a religious order or disappearance was regarded as equivalent to the death of the testator. How far the debts of a testator were transmitted to the descendants was a matter of dispute.
The narrower circle of Sapinda relations stretched up to the great-grandson, and here too, as in the law of inheritance, the religious motive connected with the funeral sacrifice plays a prominent part. Therefore, even the absence of assets does not free the sons from the liability for the debts of the father. On the other hand, immoral promises of payment such as gambling debts and tavern scores of the father were not binding on the sons and as little binding were the debts of a father who was rendered unfit for legal business on account of some bodily or spiritual defect.
The head of the family, in general, was not liable for those debts which the sons, the wife or other members of the family had contracted for purposes other than those of the household. Only in the case of those professions in which the man could support himself only with the help of the wife, e.g. in the case of washermen, shepherds, actors and sailors, the debts of the wife were said to be always binding on the husband. After the death of the husband, the wife was responsible for those debts of his which she contracted together with him or which she had expressly recognised and she was also liable for her husband’s debts if she inherited his property or received from him a command of payment at the time of his death; in the absence of assets or sons the liability may fall also on him with whom the widow lives, inasmuch as he was to some extent the heir.
At the payment of the debt as well as the at the time of giving back a deposit the same forms were to be observed as when launching on them. Therefore, if it was contracted orally or with written documents before witnesses, the same witnesses must be present also when it was paid back. If a written contract had been made, as was usually the case, the creditor must have to give it back or tear it or give the debtor an acquittance; part payments too had to be noted down on the back of the bond of debt, or if it was not at hand, a special acquittance was to be given for them.
If the creditor refused to give acquittance for a sum which was paid he would forfeit the rest of his dues, and moreover the amount which had been paid to him but for which he had given no acquittance began to accumulate interests for the debtor as it had till then done for the creditor. Accumulation of interest stopped of the creditor did not accept the offered payment (out of greed, in order to get further interests, according to the commentators); yet according to Yagnavalkya, this happened only when the debtor deposited the money with a disinterested party.
Among several concurring demands, according to Katyayana, the oldest one is to be satisfied first; exception however should be made in favour of the demands of a Brahman or a king which shall be satisfied before all others. The Brahmans appear to be favoured also in another way; after the death of a creditor of this caste the debtor shall pay back the debt not only to his descendants or near or more distant relations, but shall pay it to other Brahmans on failure of such relations and if Brahmans too could not be found, it was to be thrown into the water.
According to the Naradasmriti, the guarantee could be of two kinds: a surety and a pledge. Pledge of property and personal security appeared to have been equally developed, yet however the law of pledge was dealt with more fully. The pledge was called Aadhi ‘deposit’ or Bandha, Bandhaka ‘binding bond’. Of the various kinds of pledges those which may be enjoyed (bhogya) and those that are to be preserved uninjured (gopya) are most important.
Pledged immovable properties which may be used, such as for instance, a house, a field, a fruit garden, appear as a rule actually to have been used; the income made out if it was the interest. Also male and female slaves, oxen, cows and other house hold animals are mentioned as usable pledges. The pledgee was responsible for the injury, loss and depreciation of a pledge excepting when vis major is the cause thereof and he forfeited the inerests in the case of illegal handling of the pledged property which was to be preserved uninjured and was punishable if he maltreated a pledged slave; on the other hand, the debtor had to replace a pledged property which had become valueless without there being any fault on the part of the creditor, and if he did not prefer it he had to pay off the debt.
Different grades of the right of mortgage was naturally excluded, because a pledge is valid only when it is actually in the possession of the creditor. For that reason only, the first mortgage is valid in the case of repeated mortgages of the same property with different creditors and if it is mortgaged with various creditors at the same time the priority of the possessor or superior right is the determinative factor or the pledge is divided among the creditors. The debtor could any time demand the restoration of the mortgaged property on payment of the debt and the accumulated interests, which according to the rule mentioned above could not exceed the amount of the principal, for in principle pledges could cannot be prescribed. This principle was particularly applicable on the case of usable pledges which are accordingly to be given back to the debtor as soon as the redoubling of the debt takes place as the result of the accumulation of interests and the whole amount which is thus due is realised through usufruct.
3.5 DEPOSITS AND TREASURE TROVE
The development of the law of deposits is expressive of the universal insecurity of person and property. Brihaspati speaks of fear of king, robbers, etc. and the purpose of cheating one’s co-heirs as motives for a deposit. A deposit (nikshepa, upanidhi, nyaasa) may either be open or closed; the closing is usually performed by seaking up the deposit or keeping in a casket or a bag. Also a deposit received from a third person, a deposit handed over in the absence of the house-holder to his family or servants, a thing lent for use in a festival etc., that which is given to a merchant for business purposes or to an artisan for him to work upon, mutual deposits and other kinds of deposits are mentioned.
The depository is punished if he misappropriates the deposited property or uses it in any other way than is expressly allowed and he is also to make good the deposited property if it is lost through his own fault. In the investigation of the question of debt particular importance is attached to the point whether the depository kept the deposit apart from his own valuable articles and thus failed to bestow upon it equal care and in general whether he did not pay necessary attention to it; he is not guilty if the deposit is lost through fire, flood, theft or through confiscation by the king or generally through a vis major or if he has timely warned the depositor of the threatening danger. The most sensible act is never to accept a deposit; yet however high religious merit may be gained by faithfully keeping a deposit, while on the other hand, its misappropriation is as great a sin as the murder of a near relative.
The law books display a great deal of imagination in laying down means of preventing the embezzlement of the deposit by the depository which probably took place very frequently: one should choose only a reliable and well-to-do man as depository; witnesses may be called who must be present at that time as well as at the time of giving back the deposit; also the seal etc. must be intact when the deposit is given back; where witnesses are lacking the judge should test the honesty of the depository by having another article deposited with him through the secret police and watching whether he gives it back or not; in a difficult case an ordeal may be resorted to, particularly in the case of secret deposits.
The same motives which urge a man to deposit his valuables with a reliable person cause him also to bury his treasure in the earth. If such a treasure is found anywhere it becomes a property of the king because he is the lord of the earth with all that is found in it; or the finder may keep 1/6th.
A Brahman, particularly a learned and dutiful Brahman, may keep the whole of a treasure trove found by him. This seems to have been the original theory; usually however, the king is less thought of. If a member of any caste other than that of the Brahman finds a treasure, he must inform the king and after delivering the sixth part—the usual share of the king also in taxation—he may keep the rest for himself; whoever fails to send information must deliver the whole treasure trove and may be punished also otherwise; if the king himself finds the treasure, he may retain it for himself; the other half he must give away to Brahmans.
3.6 WAGES, HIRE AND COMPENSATION
Among the rules about the wages for service those which deal with field labour are the oldest. Cowherds are usually paid in kind, inasmuch as they receive a part of the milk; according to others they receive a part of the milk; according to others they receive also a certain percentage of the animals entrusted to them, e.g., a calf for every 100 cows; they are however punishable for wickedly deserting the herd and for illegal milking. With the break of the day they have to drive the cattle to the meadow and bring them back to the stall at dusk undiminished and uninjured.
The cowherd will have to compensate for any injury that may occure to the cattle during that time excepting when he can prove that he had not slackened necessary attention for the cattle, for instance if he had defended his herd as best as he could against the attack of wolves or cired for help in the case of an attack by robbers. For damages to fields done by the herd he suffers punishments varying according to the amount of the damage and his own guilt but the duty of compensation in this case falls upon his employer; yet however there are cases in which both of them are allowed immunity from punishment, e.g. of the field is without fence or if the cowherd was ill or if any accident had befallen him, if the cow had calfed very recently or if the cow was unusually obstinate.
There is a difference of opinion in this case as to whether over and above the obligation to compensate for the injury done by his cattle the owner has to pay the fine imposed on him, in which case the cowherd comes off with a sound flogging. The generally recognised principle seems to have been that the owner alone was responsible if there was no cowherd with the cattle.
Later authors give a classification of various wages for labour. The warrior stands first, after him comes the field labourer, load carriers and domestic servants occupy the lowest place. In all these kinds of service, even in the case of the servant of a merchant, a share of the profit may also be stipulated for instead of the wages; in shorter periods of woek very probably a fixed sum was stipulated for as a rule. Idle employees who do not perform or finish their duty shall receive no wages, or shall return double the amount received as wages or shall also pay a fine; yet, however, illness is recognised as a legitimate cause of hindrance to work. On the other hand the employer who without any ground refuses to pay the stipulated wages may be compelled to do it and a fine is imposed upon him; he may pay for the special performances of his employees as he wishes. The employees must look after the implements or to any property of the master, excepting what is caused by force majeure.
Similar rules are applied also to transport agreements. Thus the transporters are responsible and punishable for the damage to the cargo caused by their own negligence; in the case of unintentional negligence of the duties of the agreement, they must pay a compensation if he withdraws from the agreement without mutual consent and it is for him to take care of a servant who may fall ill on the road; in the case of an interruption of the transport for which the transporter is not guilty, e.g. on account of the attack of robbers, he must pay the transporter for the portion of the journey already accomplished.
Besides the already mentioned instances of engaging load carriers and beasts of burden or draughts animals or wagons also the rent for a house, a cistern or a shop etc. is included in the category of hire. He who does not give back at the fixed time these rented properties or hired elephants, camels and other beasts of burden, has to pay for it adequately. Any injury to a property of the owner must be made good to the owner by the hirer excepting in the case of force majeure. If anybody has built a house on a piece of land not his own he can take away the building materials used for it when evacuating the place only if he has paid the rent of the piece of the land to the owner; otherwise he must leave behind the building materials as compensation.
The obligation to pay compensation for every kind of injury is recognized in the fullest extent and the evidence for it may be found in what has been said above. Thus the owners must be compensated also for killed household animals, felled trees, torn or injured plant, expenses of treatment must be paid for wounded men or household animals, destroyed or injured walls, dikes, houses must be reconstructed and defiled roads shall be wiped clean.
We find included herein also the compensation which a metal-worker working in iron, copper, lead, tin, silver or gold, has to pay to the owner of these metals who gives these to him to prepare utensils from, for the loss in smelting when it exceeds the usual amount of loss in smelting as known from experience as well as the compensation of a weaver for the yarn woven by him, rendered heavier or more valuable in the process. In the case of a washerman it is assumed that the line loses 1/8th of its original value at the first washing, 1/4th at the second etc. and therefore the washerman has to make good to his coustomers every loss which exceeds this amount. It is therefore in his own interest to wash the linen as carefully as possible on a board of soft wood.
3.7 LAW OF COMMERCE AND COMPANIES
In the law of trade which is wholly a later development the purchase upon trial strikes us first of all. The buyer may and should personally examine the wares closely and show them to others before the purchase is regarded as complete. What the test would be depends on the nature of the ware to be sold; it may be sold by tale e.g. betelnuts, or by weight such as gold or sandal wood, by measure such as grains, according to work such as draughts animals, according to beauty such as female slaves, according to splendor or lustre such as precious stones.
The seller will be punished if he uses false weights, artificially covers any actual defects, mixes with oil, salt, corns etc. substances of less value, gives a false brilliance to precious stones, iron etc or generally if he attempts to raise the price of his wares or hands over quite a different article than was shown at first.
The data are conflicting as to the period of examination, which may partly be the result of local differences; principally however it depends on the value of the article and its durability and the difficulty of testing it. Thus according to Narada, the period of testing shall be one day in the case of iron and garments, 3 days in the case of milch cows, 5 days in the case of beasts of burden, 7 days in the case of precious stones, pearls and corals, 10 days in the case of corns, a fortnight in the case of slaves and a whole month in the case of female slaves.
Even a consummated sale may be annulled, according to Narada on payment of some penalty which should amount to 1/30th of the price on the second day and 1/15th of the price on the third day. After 3 days every sale is final and definitive. An earnest money which may have been paid by the buyer is forfeited if he fails to realise the purchase; on the other hand, a seller who refuses to sell an article after having promised to do so shall pay back to the buyer double the amount of the earnest money. If the buyer refuses or makes delay in taking delivery of the article the risk of damage or loss that may happen through fire, theft, etc., is of the buyer and the article may be sold to another person; on the other hand the seller is to bear the risk if he refuses to deliver the article even after receiving the price.
If during the period of non-delivery the merchandise which has been sold loses in value, e.g. if the milk yield of a cow diminishes, or if there is a fall of price, or if in the case of export wares the chances of profit are greater—for all this the seller shall have to bear the consequences. After consulting the various pertinent texts the Mitakshara has developed the theory that in the case of a ware already tested the purchaser is entitled to cancel the purchase within three days if the price is extraordinarily low; in the case of wares which have not yet been tested the purchaser is entitled to annul the purchase during the period of testing on the discovery of some defect; in the absence of any such ground hwever, even during the fixed period and in all cases after the expiration of that period, a penalty of 1/6th of the price should have to be paid when annulling a sale on purchase.
The purchaser should try to protect himself not only from illusive representations and other treacherous manipulations of the seller but he should also be on his guard that the buys only from the real owner. The ‘sale without ownership’ is invalid and the legitimate owner may reclaim the sold property at any time from the temporary proprietor. As it appears, regular markets used to be held. One should purchase only in the markets and even that before witnesses, during usual market time from honest vendors and at reasonable prices; otherwise the purchaser will be punished if he is not able to identify the vendor who will have to give him back the purchase price paid by him while the purchased property is restored to the proper owner.
Even when the seller cannot be found, but if the purchase has at least taken place in an open market, the purchaser receives no punishment, yet he must however give the article back to the owner. The seller however is punished in any case, whether he is a relative of the owner or not and all the same if it is an embezzled pledge or deposit or if it is something found or stolen. Even the owner must have his right to the disputed property corroborated by witnesses or other well-known means of proving. If he cannot show the proof he shall pay as penalty twice the amount of the value of the property falsely claimed by him. Even when he has proved his claim he shall pay to the purchaser half the price when the latter gives the property back to him if he had bought it bona fide in a bazaar (vaanigveethi) before royal officers.
The control and interference of the is a very remarkable feature in every part of the law of trade. The king shall fix the market price every five or fourteen days or when he thinks fit in view of the rapidity of the fluctuation of prices, so that the profit of the traders in indigenous wares may be 5 percent and of those in foreign wares 10 percent; he should take for himself 1/20th of the value of the merchandise and under certain circumstances even 1/10th of the same after making due consideration of the market price and the costs of the journey, the maintenance of the servants and the escorts of the transports; he shall collect duties and ferriage at the customs houses (shulkasthana) and the ferries (tara) and impose heavy fines on merchants who try to evade the customs houses; he should examine the measures and weights and have them verified twice a year—falsification of measures, weights and coins is severely punished; he should try to stdop the formation of cliques among the merchants which aim at bringing about artificial rises and falls in the prices.
The king should also watch over the gambling houses and draw his share of profits from them. The king himself appears as an industry captain inasmuch as not only the whole or at least half of the profits of the mines belong to him, but even factories are run by him and the production and the sale always belong to the royal monopolies.
The companies, guilds and corporations of all sorts shall enjoy the special protection of the king. The law of partnership has however been developed only in the later Smritis, apparently in connection with the religious brotherhoods and associations which are already mentioned in the older works.
- 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.
- 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–
- Vasishtha Dharmasutra-ed. by Dr. Fuhrer, Bombay Sanskrit Series
- 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.
- Commentaries and Digests
- Dayabhaga– Jimutvahana, ed. by Pt. Jivananda.
- Medhatithi-vide Manusmriti.
- Mitakshara-Vijnaneswara, Nirnayasagar Press.
- Smritichandrika-Devanna-Bhatta, ed. by J.R. Gharpure.
- Other texts
- Kautilya’s Arthashastra-Dr. Shama Shastri Edition, Mysore University Oriental Library.
- Nirukta-Yaska, ed. by Roth.
- 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.
 Applying the strict canons of law to the Smritis, Dr. Breloer in his ‘Kautaliya Studein L Das Grudegentum in Indien’ in pg 36-37, has arrived at the conclusion that like the Greeks the Indians too never made any distinction between possession and ownership. As far as the older Smritis are concerned, Dr Breloer is perfectly right, but he sems to have taken no notice of the statement in the Smritisangrah quoted below. The author of the Smritisangrah (and his followers) was fully conscious that there is something indefinable in ownership which cannot be proved by circumstantial evidence but by the science of law (Shastra).
 GauDh 10.39
 ManuSm 9.44.
 Julius Jolly, Hindu Law And Custom, Kalidas Nag for Greater India Society, Calcutta, 1928, p 209.
 Termed as Ataavi, Khila, and Ardhakhila respectively.
 NarSm 11.23-27.
 NarSm 1.44-49.
 The arguments of this opposite camp are worth quoting. Mitramisra says that although the Shastra recommend certain modes of acquiring property it does not follow that ownership cannot be valid without observing those directions, just as a man does not enjoy his mean the less even though he disregards the rules about keeping one’s face turned to a certain direction at the time of eating.
 Mitakashara (Bomb. 1882) pg 189; Viramitrodaya (ed. G. Sarkar) 1, 12; Vyavaharamayukha (ed. Mandlik) pg 32. Sarasvativilaasa pg 401.
 GauDh 12.37; ManuSm 8.147.
 NarSm 13.41.
 NarSm 4.7-10.
 BrSm 25.22-26.
 BriSm 9.15; NarSm 13.48.
 GauDh 12.38; YagSm 2.25; BrSm 9.21.
 VaDh 16.18; NarSm 1.81.
 ManuSm 8.149; GauDh 28.47.
 GauDh 12.39.
 Julius Jolly, Hindu Law And Custom, Kalidas Nag for Greater India Society, Calcutta, 1928, p. 213.
 ViSm 5. 185.
 Thus, already in the case of the son of the first possessor, the possession is regarded as more than mere right of acquisition if already between the first possessor and a pretender, no dispute had arisen which was not afterwards satisfactorily settled. The possession (Bhukti) however becomes quite indisputable and independent of any right of acquisition when as Tripurushagataa it has lasted three generations. Thus we have expressions as Paurushi, Dvipaurushi, Tripaurushi, Bhukti “possession for one, two or three generations”, in which each generation is reckone by 36 years. The ‘possession for three generations’ should particularly be considered as possession from time immemorial; The Mitakshara and other commentaries explain this term by a period exceeding 100 years (Vi. 5.86; Yagnavalkyasmriti 2.27-29; Naradasmriti 1.89-91; Brihaspati 9.23-29; Katyayana 8.1-8. The following rules involve an encouragement of pious gifts, viz. even a possession of three generations cannot prevail against a grant (Shaasana), and that a complex of immovable occurring in such a grant should wholly belong to him who actually possesses even only a part of it (Brihaspti 9.30).
 West and Buhler 3rd Edn 692.
 George A. Grierson, Bihar Peasant Life-Being A Discursive Catalogue, Cosmo Publications, Delhi, 1985, p. 797.
 NarSm 14.23.
 Dr. Breloer, however, is of the view that all this does not prove individual ownership for even a simple possessor of the field would have enjoyed this protection of law.
 ManuSm 8.237, 9.219, 8.240; YagSm 2.167
 ManuSm 9.54; NarSm 12.56.
 Naradasmriti 11.13.
 YagSm 2.158.
 Meyer has transalted the above quoted passage of Yagnavalkya in quite a different manner and makes it yield a meaning which, in his opinion, proves Yagnavalkya’s dependence on Kautilya who lays down that fields should be taken away from idle owners.
 One of these texts declares the sale of immovable to be generally inadmissible and even says that it is possible to mortgage it only with the permission of those in authority; according to the other text alienation of the ownership of a piece of land is subject to six conditions, namely the consent of the village community (svagraama), of the relations, neighbours (saamanta), and of the heirs and the gift of gold and water (symbol of a gift). The commentators of course interpret this text in all possible manners; as for examply, they find in it the assistance of the village community etc. in merely authenticating the act; yet, however, the passage may be a relic of a time or region in which the community actually possessed the right of prohibiting the alienation of property.
 BrSm 19.6.
 ViSm 5.172; Manusmriti 9.291; YagSm 2.155.
 ManuSm 8.256; YagSm 2.152; NarSm 11.10.
 KatSm 18.19.
 KatSm 18.10.
 ManuSm 8.255.
 BrSm 19.16-21.
 NarSm 11.17-22; YagSm 2.156.
 KatSm 18.20; BrSm 19.24-26.
 VaDh 16.12; KatSm 18.22.
 NarSm 11.15.
 ManuSm 8.131-138.
 ViSm 9.4.
 NarSm 1.7-9.
 NaSm 1.111.
 ViSm 45.26.
 ManuSm 10.116; YagSm 3.42.
 VaDh 2.51.
 ManuSm 8.152.
 It is significant that Kautilya ignores the caste privileges in the law of debt.
 ViSm 6.3.
 ManuSm 8.15
 YagSm 2.44.
 ViSm 6.27-39.
 BrSm11.51; KatSm 10.53.
 ViSm 6.37.
 NarSm 1.16.22.
 ViSm 6.1.
 ViSm 6.24; YagSm 2.94.
 ViSm 6.25; YagSm 2.93.
 NarSm 1.115.
 YagSm 2.44.
 NarSm 1.112.
 NarSm 1.125.
 Termed as anvaadhi or anvaahita.
 NarSm 2.14; BrSm 12.15; KatSm 11.1.
 BriSm 12.6-8.
 ManuSm 8.179-184.
 Or nidhi.
 GauDh10.34; ManuSm 8.39.
 GauDh 10.44.
 Kautilya however allows the king to seize the whole of a treasure trove specially if it is large.
 ManuSm 8.35-39; YagSm 2.34.
 GauDh12.18-26; YagSm 2.159
 NarSm 5.22-24.
 BrSm 16.9.
 NarSm 6.4-9; YagSm 2.193-198.
 KatSm 15.19.
 NarSm 6.22.
 NarSm 6.20.
 NarSm 9.12-15; YagSm 2.178.
 ManuSm 8.396.
 NarSm 8.3.
 ManuSm 8.203; YagSm 2.244-248; NarSm 8.7.
 NarSm 9.5.
 GauDh 12.42; YagSm 2.254.
 NarSm 8.4-10.
 ManuSm 8.197-202; NarSm 7.1-5.
 BrSm 13.4-9.
 ManuSm 8.398-405; YagSm 2.249-253.
 YagSm 2.200; NarSm 17.8.
 ManuSm 7.62.
 Medhatithi on ManuSm 8.399.