Verse 8.165

Sanskrit text, Unicode transliteration and English translation by Ganganath Jha:

योगाधमनविक्रीतं योगदानप्रतिग्रहम् ।
यत्र वाऽप्युपधिं पश्येत् तत् सर्वं विनिवर्तयेत् ॥ १६५ ॥

yogādhamanavikrītaṃ yogadānapratigraham |
yatra vā'pyupadhiṃ paśyet tat sarvaṃ vinivartayet || 165 ||

Fraudulent mortgages and sales, fraudelent gifts and acceptances, as also all wherein he detects fraud—he shall nullify.—(165)

 

Medhātithi’s commentary (manubhāṣya):

‘Fraud’ is deceit; when a certain thing has been mortgaged fraudulently,—i.e., when it is found that it has been done in an improper manner,—then the king shall ‘nullify it’. A debtor, on being pressed by the creditor, may say ‘I have nothing’;—on which the latter may say, ‘you have a cultivated field, a barren plot, a house, give me these.’ In view of the possibility of this demand, the debtor mortgages his property beforehand, to a friend or relative, so that when the demand is actually made, he says—‘all this is already mortgaged.’ In this case, even though the mortgage-bond may be there, it is easily perceived that there is no real mortgagee in the case; for if there were a real mortgagee, how could it he possible for the property to be still enjoyed by the alleged mortgager? In such a case, having found the mortgage to be fraudulent, the king should nullify it and make the debtor surrender to the creditor all his cultivated field and other property.

Similarly in a case whore the man has acquired a property in one form, but transferred it to another in another form,—this also is a ‘fraudulent transaction’; and in this case, when the fraud has been detected, the debtor should be made to execute another transfer-deed in the right form.

So also in the case of sales and other transactions. When a person sells a high-priced article, but does not receive its price from the buyer, but has declared to him ‘I have sold this, it is yours,’—then after sometime, it is not open to him to say ‘I have not sold it, it is mine.’ In fact any rescission of sale cannot be permitted after the lapse of ten days; nor when the sale has been effected by a trustworthy person. That a certain selling-transaction has been fraudulent is to be ascertained, when it is found that either on account of some defect in the article sold, or some other cause, the article sold does not serve the purposes that it was alleged to be able to servo, or is found incapable of being treasured as a valuable thing (?).

‘Fraudulent gift and acceptance’;—though the act of giving involves that of accepting also, and hence the one would have implied the other,—neither being possible without the other,—yet the text has mentioned both, for the purpose of filling up the metre. Or such mention was necessary, as otherwise, if only one act were mentioned, the resultant penalty would fall upon the doer of that act only, and not on that of the other, on the ground of this latter not having been directly mentioned. Hence, in order to indicate that the penalty should be inflicted upon the giver and the receiver both, both the acts have had to be mentioned.

“In that case, on the same grounds, in the case of the acts of ‘fraudulent mortgage and sale’ also, the other party to the transaction,—the doer of the act of buying for instance—should have been mentioned.”

It is not absolutely necessary to do so; since the requisite information is supplied by other Smṛti-texts; and since all the Smṛti-texts treat of a common subject, they can always be taken as one conglomerate whole.

E.g., when a thing is owned by two persons, if one of them, after having made a compact with the receiver, makes the other partner make the gift to him,—this is a ease of ‘fraudulent gift and acceptance.’ The compound ‘dānapratigraham’ is treated as singular, because ‘dāna’ and ‘pratigraha’ together form a copulative compound.

‘All wherein he detects fraud.’—‘Fraud’ means deceit. Even apart from the acts that have been specified, there are various kinds of fraudulent transactions. For instance, on being pressed by his creditor, a debtor approaches a wealthy person with the appeal—‘until yon agree to stand surety for me, I shall not leave you’;—whereupon the wealthy man makes a secret compact with the creditor—‘accept mo as the man’s surety, and during all this time I shall go on tormenting him, he has done me much wrong, I am standing surety for him only for the purpose of tormenting him, and I shall not be liable to pay anything on his account’;—thereupon the creditor says openly to the debtor,—‘If you cannot produce a man who will stand surety for you, nor do you propose to liquidate the debt by manual labour or such other means, then your property must be forfeited’;—being thus pressed he approaches the aforesaid wealthy person, who however says—‘I have never before had any business-transaction with him’; but he later on says again, ‘all right, I shall be your surety’; and the debtor also, in view of the trouble in store for him, accepts it.

What is said here should be taken as applying to all such transactions as relate to trades and crafts and so forth It is only by way of illustration that the acts of ‘gift, mortgage, and sale’ have been specially mentioned. The meaning thus is that whatever transaction the king finds out to be fraudulent, ‘he shall nullify’; even though it has been effected, he shall declare it to be not-affected, cancelled, shall not regard it as valid,—and he shall also punish both parties to the transaction.—(165)

 

Explanatory notes by Ganganath Jha

This verse is quoted in Parāśaramādhava (Vyavahāra, p. 162), which explains ‘Yoga’ as ‘obtain another’s property, without any right to it, by means of begging and such other means’,—‘ādhamana’ as ‘pledge’;—and the compound ‘Yogādhamanam’ as ‘Yoge ādhamanam’, ‘pledging of what does not rightly belong to one.’

It is quoted in Vyavahāramayūkha (p. 90), which explains ‘Yoga’ as ‘fraud’; and adds that the king shall nullify every transaction in connection with which he detects some fraud;—in Kṛtyakalpataru (65b) which explains ‘upadhī’ as fraud,—‘yogā’ as ‘deceit’;—and in Vīramitrodaya (Vyavahāra, 39b), which has the following notes:—‘Ādhamana’ is pledge,—‘yoga’ is deceit,—‘upādhi’ is fraud;—and adds that all fraudulent transactions are null and void.

 

Comparative notes by various authors

Viṣṇu (7.7).—‘A fraudulent document makes no evidence.’

Yājñavalkya (2.89).—‘A document written in one's own hand, even when not attested by witnesses, is to be accepted as evidence, except when it has been obtained by force or fraud.’

Kātyāyana (Aparārka, p. 686).—‘A document becomes nullified by the defect of witnesses, or of the scribe, as also by reason of fraud on the part of the creditor.’

Yama (Parāśaramādhava-Vyavahara, p. 162).—‘What is given under force, or enjoyed forcibly, or made to be written forcibly,—all transcations effected under force, Manu has declared to be fit for being nullified.’

Nārada (1.137).—‘A document is invalid which has been executed by a person intoxicated, by one charged with a crime, by a woman, or by a child, or that which has been caused to be written by forcible means, by intimidation, or by deception.’

Bṛhaspati (8.21, 23).—‘Forgery may be found out by internal evidence and legitimate titles...... A document executed by fraud, or by force, does not. hold good.’