Verse 8.198

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

अवहार्यो भवेत्चैव सान्वयः षट्शतं दमम् ।
निरन्वयोऽनपसरः प्राप्तः स्याच्चौरकिल्बिषम् ॥ १९८ ॥

avahāryo bhavetcaiva sānvayaḥ ṣaṭśataṃ damam |
niranvayo'napasaraḥ prāptaḥ syāccaurakilbiṣam || 198 ||

If a relative, he shall be made to pay the penalty of six hundred; if he is not a relative, nor one having access to him, he shall incur the guilt of theft (specially).—(198)

 

Medhātithi’s commentary (manubhāṣya):

The preceding verse has declared that the man who sells the property of another person is not fit to be admitted to any transaction done by gentlemen, such as the giving of evidence and so forth; and the present verse prescribes for him the penalty of the fine of six hundred. He shall be made to pay—fined—six hundred coins.

‘If a relative,’ ‘sānvaya’;—‘anvaya’ means relation; he who has some relationship is a ‘relative,’—such as the son, the wife, the brother and so forth. If such a relative, even though not actually permitted to sell, sells a property, he is not quite a thief; for he is likely to have the idea ‘if it belongs to my father, it is mine’; and in his case it is likely that he will hand over the sale-proceeds to the rightful owner.

The man who has absolutely no relationship with the owner is said to be ‘not a relative,’ ‘niranvayaḥ’; and such a person ‘incurs the guilt of a thief’—i.e., deserves to be punished as such, undoubtedly. Specially so if he is ‘not one having access’; i.e., if he has no free access to the household of the owner, he should certainly be punished as a thief. If, on the other hand, the property sold by him has been obtained from the household itself,—having been given or sold by some one in the house,—and he has received it through ignorance or folly,—or if he has bought it in an open sale,—then he shall not be punished as a thief; he shall only be fined six hundred.

Or the term ‘apasara,’ ‘access,’ may be taken as standing for modes of acquisition other than purchase,—snoh as gift and the like. The meaning thus is—‘He is to be regarded as a thief, if he has not purchased it from anyone, nor acquired it through gift or other modes of acquisition.’—(198)

 

Explanatory notes by Ganganath Jha

This verse is quoted in Vivādaratnākara (p. 103), which adds the following notes:—‘Avahāryo bhavet,’ should be fined;—‘svānvayaḥ’ (which is its reading for ‘sānvayaḥ’) a son or some relation of the rightful owner;—‘ṣaṭśatam,’ six hundred paṇas;—‘niranvayaḥ,’ not related to the rightful owner;—‘anapasaraḥ,’ means the removing of the property from the owner’s house;—and the man who does this and sells what belongs to another should be fined six hundred paṇas. If this seller is not a relative of the owner,—and if the removing of the property from the owner’s house has been done, not by any person related to the owner, but by the seller himself,—then he should be punished like a thief. If however the removing has been done by some one else, but the selling is done by the owner’s relative, then the fine may be even more than six hundred paṇas.—The author of

Kalpataru has explained ‘apasara’ as the justification for moving the article from the owner’s possession—such as its being a gift and so forth by which property moves away from the owner’s possession (apasarati anena); and he who has no such justification is ‘anapasara’; and this writer adds that this view has the support of Bhāguri, Medhātithi and the Vṛttikāra.

It is quoted in Vivādacintāmaṇi (p. 41) which has the following notes:—‘Avahāryaḥ,’ should be made to give up,—‘sānvayaḥ’ belonging to the family of the owner of the property concerned,—‘niranvayaḥ,’ not a member of the owner’s family,—‘anapasaraḥ,’ ‘who has not received the property by any equitable method of acquisition, such as gift and the like’—‘ṣaṭśatam,’ he is to be fined 600 paṇas;—and in Kṛtyakalpataru (85b), which explains ‘avahāryaḥ’ as ‘should be made to pay—‘sānvayaḥ’, as ‘along with his brothers and relatives,’—‘ṣaṭśatam,’ i.e., 600 paṇas.—It goes on to say what has been quoted in Vivādaratnākara (above).

 

Comparative notes by various authors

(verses 8.198-199)

Arthaśāstra (p. 95).—‘When the rightful owner has found the article that he had lost or which had been stolen from him, he shall have the man in possession of it arrested by the Judge. If the exigencies of time and place do not permit of this procedure, he may himself arrest the man and take him to the Judge;—the Judge shall ask the man in possession —From where did you obtain this thing? If the man explains the manner of his acquisition, but fails to produce the man who had sold it to him, he should be let off after he has surrendered the property; if the vendor is produced, the vendor should he made to pay the price obtained to the purchaser, and also a penalty for theft.’

Nārada (7.4, 5).—‘The purchaser must not make a secret of the way in which he came by a chattel purchased by him. He becomes free from blame if he can point out the way in which the chattel was acquired by him. In any other case, he is equally guilty with the vendor and shall suffer the punishment of a thief. The vendor shall restore the property to the rightful owner, and shall pay to the purchaser the price for which he had sold it; besides that, he shall pay a fine to the King.’

Bṛhaspati (13.3, 4).—‘When the vendor has been produced and cast in the suit, the judge shall make him pay the price to the buyer and a fine to the King, and to restore the property to the owner. When the former owner comes forward and makes good his claim to the thing sold, the vendor shall be produced by the purchaser, who thereupon becomes cleared.’

Vyāsa (Vivādaratnākara, p. 202).—‘When the purchaser has shown the person from whom he had purchased the article, he shall not be blamed in any way; after that, the dispute shall he between that person and the rightful owner of the lost article.’

Yājñavalkya (2.168, 169, 170).—‘If one’s property has been sold by another person, the property shall be restored to him; the purchaser becomes guilty if he cannot produce the seller; and he shall be dealt with as a thief, if he bought the thing either in secret, or at a very low price, or at an improper time. If a man comes by his property that had been lost or stolen, he should have the possessor arrested; or if the time or place does not permit of this, he shall arrest him himself and produce him before the court; the man becomes absolved from blame on producing the seller; and from the seller, the owner recovers his property,—the purchaser, the price that he had paid, and the King, a fine.’

Bṛhaspati (13.11)—‘That should be regarded as Fraudulent Purchase which is made at an unreasonably low price, or in the interior of a house, or outside of the village, or at night, or in secret, or from a dishonest person.’