Chapter 5.4 - Laws Relating to Written Document (likhita)

Document (likhita) is mentioned by Yājñavalkya as the first means of proof. It is an important evidence. Even today, documentary evidence is considered permanent and valid for all time. Yājñavalkya has given a special treatment to documents with separate systematic rules of proof. The Mitākṣarā observes that Yājñavalkya has dealt with two kinds of document viz. śāsana and jānapada. The laws relating to documents prescribed in the Vyavahārādhyāya concerns with jānapada, which is said to be twofold, one in own handwriting of the executants and one written by another. Of these, the former may be without any attestation of witnesses but the later requires attestation of witnesses. ^[1]

In the Yājñavalkyasmṛti (2.22), the Mitākṣarā provides another name called cīraka in lieu of jānapada. Śāsana is a royal grant, i.e. the document drawn up in the form of royal order with detailed description for the information in future. Yājñavalkya has made it necessary that allotment of land or granting of pension by the king were necessary to be reduced to writing.^[2] He has provided formation of documents as a means of evidence for preserving past transactions. Any kind of transaction contracted by mutual consent of the parties or mutually settled arrangement, relating to debt or the like, should be committed to writing. This document should be made bearing the names of the witnesses. It should mention the name of the creditor first.^[3] Moreover, this type of written document should contain among other things the names of the parties and of their father, the castes, gotras or family, the scholastic title, etc., it should be marked with the year, month, fortnight, day and such other details.^[4] Writing of the terms of transactions or agreements along with these details being completed, the debtor must enter his name in his own handwriting with a note that he, son of such and such, clarifies what is written in this deed is approved by him or is written with his knowledge and consent.⁸³ Thereafter, the witnesses of equal numbers should subscribe their names in their own hand, preceded by the names of their fathers and furnishing the words that he, so and so, is a witness in that document.^[5]

At the end of the document [i.e., likhita], the writer of the deed should endorse that he such and such person, the son of so and so, writes at the request or desire of both the parties, this document.^[6] Thus, this rule pertains to the documents, which are in the handwritings of another person. A document written by the executant himself in his own handwriting is regarded as authoritative evidence by law though without being attested by witnesses. However, it should not be caused to write down by force or fraud, etc., otherwise, it would be invalid.^[7]

These rules of Yājñavalkya, constituting the manner how to create a valid document hold good even today. Section 63 of the Indian Succession Act has defined attestation, in relation to an instrument, means attested by two or more witnesses each of whom has seen the executants signing or affixing his mark to the instrument and each of them has to sign the instrument in presence of the executants.^[8] Thus, the attestation mentioned under Indian Succession Act and the provisions under Indian Registration Act are found similar with the laws of Yājñavalkya regarding document about the endorsement of the executants and the witnesses. Voidability of an agreement when consent is caused by coercion, fraud or misrepresentation under Section 19 of Indian Contract Act goes in accordance with the law of Yājñavalkya rendering a document in one’s own handwriting invalid if it is caused by force or fraud.

One can realise the debt with the help of document [i.e., likhita] for the three generations of the debtor, thus, the liability created by the execution of the document or the period of limitation for recovery of such loan extends up to three generation of the debtor and not afterwards. However, a pledge or mortgage may be enjoyed so long the debt is not paid off.^[9] In the second part of the rule, a capacity has been indicated in favour of even after third generation for redeeming a secured debt, evidenced by document. ^[10] It is prescribed that when a document is in another country, illegibly written, lost or destroyed, effaced, stolen and likewise of it is burnt, torn or cut into separate pieces then another document should be allowed to be brought into existence in its place.^[11] The grounds mentioned here are almost same with that of section 65 of Indian Evidence Act, the circumstances when secondary evidences are allowed.^[12] The explanation given by the Mitākṣarā on this rule too bears conformity with the law of section 63 and 65 of Indian Evidence Act. According to Kane, this shows the requirement of production of the document itself as primary evidence but allowed secondary evidence only in exceptional cases.^[13]

Yājñavalkya is careful about the forgery of documents [i.e., likhita]. Therefore, he lays down the rule to examine the genuineness of disputed or doubtful documents. The genuineness of a doubtful document is to be established by comparing with other documents or writings in his own hand of the party, who had written the disputed document and such other means also by presumption, by confrontation of parties, by production of direct proof i.e. witnesses etc., by distinctive marks, by previous connection, by probabilities of titles and by inference.^[14] The Mitākṣarā commenting upon this rule states that if the letters of the disputed documents and the admitted handwriting of the person who had written the document are found similar then the genuineness will be established. ^[15] Comparing this rule of Yājñavalkya and its interpretation by commentators, with that of the modern law, similar rule is found in section 67 and 73 of Indian Evidence Act. Section 67 requires that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of such document must be proved to be in his handwriting. Section 73 further provides that the disputed writing is to be compared with any signature or writing admitted or proved to have been written or made by that person, whose handwriting is in dispute.^[16] It authorises the Court to compare for the purpose of deciding the genuineness of the document.

Yājñavalkya has prescribed two other rules of practical importance, which reveal how much attention he has paid while laying down rules. These rules provide that the debtor should enter on the back of the deed about each payment made by him after making the payment, or the creditor should endorse receipt of amount in his own handwriting.^[17] After the discharge of full debt, the document [i.e., likhita] executed for that purpose should be destroyed or torn or another deed of discharge from the debt should be executed by the creditor to the debtor. It is also necessary that the loan or debt taken in front of the witnesses must be repaid in the presence of witnesses.^[18] These provisions are the safeguards against cheating and also precautions against any misuse of the deed. It is to be mentioned here that even Nārada has missed such provisions. These practices are still in vogue in the country. It can be seen that people use to tear in the middle of a money bond, when it is paid off and it is done in presence of both debtor and creditor.

Footnotes and references:

[1]:

tatra lekhyaṃ dvividhaṃ śāsanaṃ jānapadaṃ uti/ śāsanaṃ nirupitam/ jānapadamabhidhīyate/ tacca dvividham svahaslakṛtamanyakṛtaṃ uti/ tatra svahastakṛtamsākṣikaṃ anyakṛtaṃ sasākṣikam/ Mitākṣarā on Yājñavalkyasmṛti, 2.84.

[2]:

Yājñavalkyasmṛti, 1.318-320

[3]:

yaḥ kaścidartho niṣṇātaḥ svarucyā tu parasparam/ lekhyaṃ tu sākṣimatkāryaṃ tasmindhanikapūrvakam// Ibid., 2.84

[4]:

samāmāsatadaradhāharnāmajātisvagotrakaiḥ/ sabrahmacārikātmīyapitṛnāmādicihnitam/ / Ibid 2.85⁸³ samāpte’rthe ṛnī nāma svahastena niveśayet/ mataṃ me’mukaputrasya yadatropari lekhitam// Ibid., 2.86

[5]:

sākṣiṇaśca svahastena pitṛnāmapūrvakam/ atrāhamamukaḥ sākṣī likheyuriti te samāḥ// Ibid., 2.87

[6]:

Ibid., 288

[7]:

vināpi sākṣibhirlekhyaṃ svahastalikhitaṃ tu yat/ tatpramāṇaṃ smṛtaṃ lekhyaṃ balopadhikṛtādṛte// Ibid., 2.89

[8]:

Vide., Lal, B., Op.cit., page362

[9]:

ṛṇaṃ lekhyakṛtaṃ puruṣaistribhireva tu/ adhistu bhuyyate tāvadyāvattannapradīyate// Yājñavalkyasmṛti, 2.90

[10]:

Mitākṣarā and Vīramitrodaya on Yājñavalkyasmṛti, 2.90.

[11]:

deśāntarasthe durlekhye naṣṭonmṛṣṭe hṛte tathā/ bhinne dagdhe’thavā chinne lekhyamanyattu kārayet// Yājñavalkyasmṛti, 2.91

[12]:

Vide., Lal, B., Op.cit., page347

[13]:

Vide., Kane, P.V., History of Dharmaśāstra, Volume3, page313

[14]:

saṃdigdhalekhyaśuddhiḥ syātsvahasta likhitādibhiḥ/ yuktiprāptikriyācihnasaṃbandhāgamahetubhiḥ// Yājñavalkyasmṛti, 2.92

[15]:

yadi sadṛśānyakṣarāṇi bhavanti tadā śuddhiḥ syādityarthaḥ/ Mitākṣarā, Ibid.

[16]:

Vide., Lal, B., Op.cit., page359, 368

[17]:

lekhyasya pṛṣṭhe’bhilikheddattvā dattvarṇiko dhanam/ dhani vopagataṃ dadyātsvahastaparicihnitam// Yājñavalkyasmṛti,2.93

[18]:

datvarṇaṃ pāṭayellekhyaṃ śuddhayai vānyattu kārayet/ sākṣimacca bhavedyadvā taddātavyaṃ sasākṣikam// Ibid., 2.94