Verse 8.3

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

प्रत्यहं देशदृष्टैश्च शास्त्रदृष्टैश्च हेतुभिः ।
अष्टादशसु मार्गेषु निबद्धानि पृथक् पृथक् ॥ ३ ॥

pratyahaṃ deśadṛṣṭaiśca śāstradṛṣṭaiśca hetubhiḥ |
aṣṭādaśasu mārgeṣu nibaddhāni pṛthak pṛthak || 3 ||

[He shall look into the suits]—day after day, one by one,—falling as they do under eighteen heads,—according to principles deduced from local usage and from the scriptures.—(3)

 

Medhātithi’s commentary (manubhāṣya):

The first half of the verse describes the means of forming a decision, and the second mentions the number of the heads of dispute.

The verb ‘shall look into’ of the preceding verse has to be construed with the present verse,—as also the noun ‘the suits’; the full sentence being ‘day after day he shall look into the suits’; i.e., every day he shall decide cases.

‘According to principles.’—‘Principles’ are the means of coining to a decision; and they are of two kinds—(l) in the shape of evidence and (2) in the shape of custom. The means leading to decisions that are in the shape of ‘evidence’ are in the form of witnesses and so forth; and those in the form of rules are such as—(a) ‘the investigation of a suit can be regarded as complete only when precise decision has been arrived at regarding its subject-matter.’ A single witness, who is true to his oath, and who has been cited by both parties, who have also vouched for his veracity,—even though he may not have been examined by the members of the court,—becomes a reliable means of arriving at the right decision; but no decision can ho arrived at on the strength of the words of any such single person as is not known to be truthful and has not been examined, as there is in the former ease; and hence such a single witness cannot he regarded as helping the forming of a decision, even though the persons investigating the case may be agreed upon it.

Customs also are of two kinds—general and special. These again are of two kinds—congruous and incongruous, in reference to places and times. As an instance of the ‘Congruous’ custom we have (a) the case where among certain people of the South, a childless woman, on the death of her huśand, goes up to the pillar of the court of justice, and while there, if, on being examined by the officers of the court, she is found to be untainted and possessed of the necessary qualifications, she obtains her inheritance;—or (b) the case where among the people of the North, if food is given to a person seeking for a bride, then she becomes betrothed to him even though the actual words ‘I shall give her to you’ may not he uttered. And as an instance of the ‘incongruous’ rule, we have (a) the case where in some countries grains are lent out during the Spring, and double the quantity is realised during the Autumn,—or (b) when an article is mortgaged on the understanding that it shall be enjoyed by the mortgagee, even if the total amount of debt accruing become double of the price of that article, and the total from the very beginning is paid in gold, yet the enjoyment of it remains unmolested;—now all this is ‘incongruous,’ being incompatible with the law that ‘the interest shall accumulate to only 80 per cent.’ (Yājñavalkya, Vyarahāra, 37), and that ‘the accumulated interest shall not exceed the double of the principal’ (Manu, 8.151).

These customs based upon the nature of the countries affected are what are mentioned in the text by the words ‘principles based upon local usage’; and as regards the ‘principles based upon scriptures,’ these are declared in the scriptures themselves. Of these latter some are rules that have been propounded by the writers themselves, while others only codify the actually existing state of things. As an instance of the rule propounded by the writers we have—(a) ‘Facts are ascertained in accordance with written documents, possession and witnesses,’—as says manu (8.41) ‘Just as the hunter infers the position of the prey by means of the drops of blood (so should the king infer the facts of a case).’ Though no worldly usage can be regarded as authoritative as against the word of scripture-writers, yet in certain cases it becomes necessary to have recourse to the words of ordinary men of the world; e.g., ‘under such and such conditions such and such an ordeal should be had recourse to,’ ‘weight is to be attached to possession lasting for such a time.’ Such rules, even though based upon ordinary usage, are included under ‘principles based upon scriptures’ But among such rules, those are to be regarded as authoritative which are found to have some support in the scriptural texts; while those that are found to be without such support are not to be so accepted. For instance, there is the rule regarding the order of words in documents—‘By me, entreated by both parties, who am the son of so and so, this has been written by so and so—thus exactly shall the scribe write down’ (Yājñavalkya, Vyavahāra, 88). In reality however, there would be no harm if the scribe were to write down his own name first—‘I so and so, the son of so and so, am writing this.’ Because the only purpose for which he writes all this is with a view to show that the document has been written by such and such a person; so that so long as the name of the scribe is put down, there is nothing objectionable in it. If the scribe is known, from other sources, to be a trustworthy person, then what is written by him is regarded as reliable; so that if he were to omit the name of his family, and thus fail to indicate precisely who he is, whose reliability would the persons concerned investigate, on the basis of other sources of information? But if from his writing, or by some other means, the writer be recognised as a particular well-known scribe, then there would be no harm even if he were to omit his indicative characteristics. In this case, even if the scribe were to omit to write that ‘this has been written by me, so and so,’ there would be enough to indicate who the writer is. And it is in such cases that the examination of the scribe comes useful; and he becomes counted among ‘witnesses,’ specially when there are few other witnesses. When however there are many trustworthy witnesses ready at hand, there is not much use in investigating the trustworthiness of the scribe.

Similarly there is another rule—‘Documentary evidence is rebutted by documentary evidence, and witnesses (oral evidence) by witnesses; documentary evidence is superior to witnesses; hence witnesses are rebutted by documentary evidence.’ (Nārada, 1.145). For this rule also there is no foundation. For ‘documentary evidence’ is of two kinds: (1) written by the party himself, and (2) written by another person. The latter again is of two kinds—(a) written by a scribe who volunteers to do the writing, and (b) written by an authorised scribe. The document written by another person again is, in every way, of the nature of a witness; so that there is no ground for the distinction made by the rule, in the words ‘documentary evidence is superior to witnesses,’ specially because the ‘witness’ has been thus defined (by Yājñavalkya, Vyavahāra, 87)—‘The witnesses shall, with their own hands, write down their names, preceded by the names of their father, adding that I, so and so, am a witness.’ Similarly, no reliability attaches to what has been written by a single man, just as it does not attach to a single witness. It might be argued that it is only when ‘witnesses’ set down their hands to something that they become ‘documentary evidence.’ But this difference cannot make the one ‘superior’ to the other. Because trustworthiness is the only ground for ‘superiority’; and this trustworthiness is equally yet to be examined in both cases. It is for this reason that in a case when there is a conflict between the two kinds of evidence, the judge should accept that which is the more numerous of the two. ‘Being authorised’ also cannot be regarded as a ground of distinction; because even so, the ‘superiority’ could only consist in the fact that it is only one who has been tested that is ‘authorised’; but as a matter of fact, all persons ‘authorised’ by the King are not necessarily thoroughly ‘tested.’ If some one happened to be possessed, of extremely high qualifications and were absolutely free from all defects, then he, even alone, could be accepted as sufficient corroboration. As for instance, the deeds of land-grants bestowed by the King are accepted as authoritative, even though written by a single Kāyastha scribe. In a case where there is documentary evidence written by the hand of the person who is not paying a debt, wherein he admits that ‘I have received so much from this person, and so much has to be paid to him,’—if he should happen to deny it and say ‘I have not received anything from him,’—then the party producing the aforesaid document wins the case outright, and there is no occasion for the appearance of any witnesses at all.

“It is only on the strength of the man’s writing that it is concluded that the debt is admitted by him,—and subsequently also the same man asserts, that he has not received anything; now between these two assertions, on what grounds is the latter rejects in favour of the former, and not the former in that or the latter,—both of them being equally open to doubt, by reason of mutual contradiction? In fact under such circumstances it is only right that other kinds of evidence should he called in.”

This would be so, if there were equality (between the two assertions). As a matter of fact, however, the assertion ‘I have not received anything’ may he due to the man’s avarice and such other causes; whereas the assertion ‘I have received such and such a thing’ could never he made by any sane person without having actually received it. In the case in question, even if the man were to say that he has repaid the debt, but did not obtain the written acquittance receipt, either because a writer was not at hand, or because being engaged in some other business he was in a hurry,—even so there would be no need and occasion for the calling of any further evidence, in the shape of witnesses, etc.

As regards the dictum quoted above (from Nārada), it cannot set aside a conviction derived from the very nature of things.

For instance, it is often found that people go on repaying debts due to rich persons, and yet do not have the payments noted on the back of the document, the idea in the man’s mind being either that ‘so much I have paid to-day, and tomorrow I shall bring in more and then have the total sum entered at the same time,’ or that ‘in a few days I shall repay the entire amount and then have the document torn off’;—but when pressed by the rich creditor, he may be unable to clear off the entire debt, and the only amount paid remains what had been on the first day, the creditor would deny even that payment on the ground that the receipt was not given;—now in this case if the court were to insist upon the dictum that ‘documentary evidence can be rebutted only by documentary evidence,’—then how could it take into consideration at all the possibility of force or fraud (on the part of the influential creditor)? for there is no possibility of any documentary evidence; and in this case, even though there is documentary evidence on one side, yet, for the purpose of coining to a right conclusion, other forms of evidence are called in; and the same could be done in other cases also. For instance, in a certain case, one of the parties (the debtor) might say—‘trusting this man, I executed this deed for the entire sum, and the creditor told me that I may receive a part of the sum that day, as for certain reasons he was not in a position to pay the whole sum then, and that he would pay the balance the next day; but the sum paid on the first day was all that he gave me, and the balance was never paid’; and in this case there is certainly an occasion for the calling in of other kinds of evidence. And if the debtor can produce witnesses in corroboration of his statement, then the document (produced by the creditor) becomes impugned, and it becomes necessary for the creditor to prove that he did pay the balance the next day. If the conversation between the parties (regarding the part payment) were held in private (and there be no witnesses to corroborate the statements one way or the other),—then there comes the occasion for having recourse to ordeals. If however there be no full confidence in ordeals,—on the ground of these being not always infallible,—then decision should he arrived at by means of oaths.

“If such be the case, then the document written by the man’s own hand becomes untrustworthy, since it stands in need of corroboration by other kinds of evidence. And this is contrary to the dictum that ‘even without witnesses, what is written by the man’s own hand should be conclusive evidence.’ It is on the analogy of this same reasoning that in a case where a person has not seen the sum being actually paid by the creditor, but in his presence the debtor has admitted that ‘such and such an amount has been received by me from him,’—such a person is accepted as a real ‘witness’; though in this ease it is open to the debtor to say ‘it was through my trust in the man that I admitted the payment.’”

This argument we have already answered by saying that mere incompatibility with a Smṛti-text cannot set aside the real facts of the case. In certain cases the aforesaid statement (of the debtor—that ‘I repaid a certain sum but did not have it entered on the back of the document’) could be wholly out of place; and in such cases, the document would certainly be accepted as reliable evidence. For instance, in a case where the document has remained in the creditor’s hands for a long time, the question naturally arises if the debtor really repaid the debt, why did he not seek out the document and receive it back; such a matter cannot be neglected or overlooked for such a long time; and from this it is inferred that what the debtor states is a lie.’ It is in view of this that it has been laid down that ‘if there has been any wrongful force used in regard to any business, one should report it to the King either at once or within three days.’ Again, in a case where there is mortgage, but the exact period of the mortgage is not definitely fixed, and dispute arises on that account, if there is a document written by the debtor, but without witnesses,—it is not open to the debtor to assert—‘you said this (made this condition) at the time through your love (for the thing), but now please give up to me the mortgaged article’; nor would this be an occasion for his making the statement referred to above—viz., ‘I executed the deed, the man said he would give me the sum mentioned therein, but he never actually gave it to me’; because if the debt was not advanced, why did he permit the creditor to retain and make use of the mortgaged article?

“If such be the case, then the evidence in the case would consist of the said possession accompanied by the document; while what the writers on law declare is that possession by itself is sufficient evidence; as assorted in such texts as—

‘Documents, witnesses, possession, etc., etc.’ (Yājñavalkya, Vyavahāra, 22).”

Why is this objection urged against us, when we have already answered it: What is accepted as evidence is possession for a definite period of time, and not mere possession. What the texts state is—‘Whatever is retained for ten years, etc.’ (manu, 8.147), and ‘One loses possession of a landed property, if for twenty years he perceives and speaks of it as being actually possessed by another person’ (Yājñavalkya, Vyavahāra, 24).

“What then is the exact meaning of the dictum that ‘documentary is rebutted only by documentary evidence?’”

Others have explained this to mean (a) that when there is a doubt regarding the writer of a certain document, as to whether or not it has been written by a certain person, this can he ascertained only with the help of another writing obtained from that person;—(b) that where the deed has been written before a certain witness, the doubt as to whether or not it has been written by the man can be removed only by means of witnesses; as the latter are the only evidence possible in the case; so that in this case there is no use in producing another writing of the man;—(c) that in a case where the payment of the debt is being intentionally withheld, documentary evidence is superior to mere witnesses; because it is possible for witnesses to forget things, or to collude with one party or the other, or become tainted with some defect which would disqualify them as proper witnesses; as for the document on the other hand, this would he in charge of the plaintiff and as such perfectly safe; and thus it is that documentary evidence is superior to witnesses. This is what is meant by the dictum that ‘witnesses are rebutted by documentary evidence’; because even though the man may have forgotten a certain fact, if he sees some writing of his own bearing testimony to it, he is convinced of its being true; or when the witnesses are all dead, if their writing is recognised, it is accepted as evidence.

Other explanations have been supplied by Bhartṛyajña, and may be learnt from his own work.

Though it is true that in all cases Smṛti-texts form the source of authority, yet rules have to be laid down for meeting special cases; and it cannot be right to depend entirely on Smṛti-texts; specially because it cannot be said that the Smṛti-texts bearing upon legal proceedings are all based upon the Veda; because the winning or losing of cases deals with well-accomplished things (while the Veda bears upon things to be accomplished) and is amenable to Perception and other forms of cognition;—e.g., that ‘one who acts like this is defeated, while he who acts thus wins’ is a well-accomplished fact. Even the few indications of these that are found in the Veda are to be regarded as being on the same footing as the assertion—‘One desiring freedom from disease should eat the Harītakī (which only describes a perceptible fact). the exact significance of such Injunctive Vedic passages has been discussed by us in the section on the ‘Purification of things’ (under Discourse 6, Verse 110 et seq.); hence we are not going to do the same thing over and again.

The objects of dispute fall within eighteen ‘heads’; it is only with regard to these that disputes arise among men. Mutually nugatory acts are not conducive to the fulfilment of any useful purpose,—as we are going to show later on.

Each of these eighteen ‘heads’ is important by itself; as each by itself becomes the object of dispute, and no one of them is included in any other. The various ramifications of these are included under each head; if these ramifications were to be enumerated separately, there would be thousands of them.—(3)

 

Explanatory notes by Ganganath Jha

‘Vināpi sākṣibhiḥ etc.’—(Medhātithi, p. 793, l. 24)—This is a clear reference to Yājñavalkya (Vyavahāra, 89).

This verse is quoted in Parāśaramādhava (Vyavahāra, p. 18), and again on p. 31, in support of the view that the king shall decide cases relating to all the eighteen points of dispute, on the basis of local customs and also of ordeals and other methods prescribed by the scriptures;—in Nṛsiṃhaprasāda (Vyavahāra, p. 2a);—in Smṛticandrikā (Vyavahāra, p. 57);—in Kṛtyakalpataru (3a), which has the following notes:—‘Deśadṛṣṭa hetu’ are those special means of coming to a decision which are effective in the place concerned,—of the custom obtaining among the people of the North and those of the Central land, of feeding the person who comes to ask for the hand of a girl, which feeding means a distinct promise to marry the girl,—‘śāstradṛṣṭa hetu’ stands for witnesses and the rest;—and in Vīramitrodaya (Vyavahāra, p. 4a).

 

Comparative notes by various authors

Gautama (II. 19-24).—‘His administration of justice shall be regulated by the Veda, the institutes of the sacred law, the subsidiary sciences and the Purāṇa; the local laws, the customs of castes and families—which arc not opposed to the sacred laws—have also authority. Cultivators, traders, herdsmen, money-lenders and artisans have the authority to lay down rules for their respective classes. Having learnt the state of affairs from those who have authority to speak, the King shall give the decision. Reasoning is a means for getting at truth; coming to a conclusion through that, he shall decide properly.’

Vaśiṣṭha (1.17).—‘Manu has declared that the peculiar laws of countries, castes and families may be followed in the absence of revealed texts.’

Do. (16.4-5).—‘Let him reason properly regarding an offence; he who reasons properly regarding an offence, in accordance with the sum of the science of the first two castes is equitable towards all living beings.’

Kātyāyana (Parāśaramādhava, p. 31).—‘The King shall decide suits according to the Śāstras; where there are no texts to guide him, he shall decide in accordance with local custom.’

Bṛhaspati (1.23).—‘Having entered the Court in the forenoon, together with elders, ministers, and attendants, he should try causes and listen to expositions of the Purāṇas, Law-codes and Rules of Polity.’

Do. (1.33).—‘People who arc ignorant of the customs of the country, unbelievers, despisers of the sacred books, insane, irrate, avaricious or diseased should not he consulted in the decision of causes.’

Do. (27.24).—‘Such customs as are not opposed to the laws of the country and castes or other corporations—the King should establish in accordance with the sacred law.’

Nārada (3.5).—‘The members of the royal court of justice must be acquainted with the sacred law and with rules of precedence,—noble, not avaricious and impartial towards friend and foe.’

Matsyapurāṇa (Rājadharma, 215.50).—‘He shall attend upon Brāhmaṇas versed in the Veda and the sciences.’

Agnipurāṇa (234.7-9).—‘He shall then see the preceptor and having received his blessings, enter the Court; therein he shall see the Brāhmaṇas, Ministers and Councillors; and then proceed to try the law-suits, holding consultations with the Councillors.’

Bṛhaspati (Smṛticandrikā-Vyavahāra).—‘Suits shall be decided by the king or by the learned Brāhmaṇa appointed as Judge.’