Yajnavalkya-smriti (Vyavaharadhyaya)—Critical study

by Kalita Nabanita | 2017 | 87,413 words

This page relates ‘Vyavaharamatrika Delineated in the Vyavaharadhyaya’ of the study on the Vyavaharadhyaya of the Yajnavalkya-smriti: one of the most prominent Smritis dealing with Dharmashastra (ancient Indian science of law), dating to the 1st century B.C. The Yajnavalkyasmriti scientifically arranges its contents in three sections: Acara (proper conduct), Vyavahara (proper law) and Prayashcitta (expiation). Vyavahara deals with judicial procedure and legal system such as substantive law and procedural law.

Chapter 2.2b - The Vyavahāramātṛkā Delineated in the Vyavahārādhyāya

The Dharmaśāstras usually deal with a section called vyavahāramātṛkā. The term vyavahāramātṛkā is not defined in the Yājñavalkyasmṛti. The rules of procedure are provided, usually grouped under the caption vyavahāramātṛkā. These are the rules of general application along with some rare exceptions. The word mātṛkā seems to have denoted fundamentals or basis. For example, the work dealing with general rules of procedure and means of proof composed by Jimūtavāhana is styled as the Vyavahāramātṛkā.[1] The word vyavahāramātṛkā is used to indicate the fundamental or basic principles or rules of vyavahāra. Aparārka states that at the beginning of the Vyavahārādhyāya, the rules of vyavahāra are dealt with.[2] The text commented upon by Viśvarūpācārya mentions the fundamentals or basic principles of vyavahāra under the title sāmānyanyāyaprakaraṇa.[3] The same is described in the texts of Vijñāneśvara[4] and Aparārka[5] under two captions viz. sādhāraṇavyavahāramātṛkāprakaraṇa and asādhāraṇavyavahāramātṛkāprakaraṇa. This portion of vyavahāra in the Vyavahārādhyāya mainly pertains to what comes within the purview of procedural law or judicial proceeding in modern sense.[6] Judicial or legal procedure lays down the rules which govern the process of litigation. It deals with the machinery and the manner for enforcement of legal rights, duties or remedies.

Before going to discuss about the judicial procedure as described in the Vyavahārādhyāya of the Yājñavalkyasmṛti, it is necessary to have a brief concept of the modern judicial procedure. In the modern day justice delivery system, there are mainly two types of judicial proceedings such as civil proceeding as well as criminal proceeding. The civil proceeding is initiated by the aggrieved party who is called plaintiff, either in person or through an Advocate, in the form of a plaint where all the allegations against the defendant, who has violated the rights of the plaintiff, are raised before the appropriate Civil Court of Law. Thereafter, on receipt of the summons, from the Civil Court, the defendant appears either in person or through an Advocate and submits his/her written statements against the allegations made in the plaint. At this stage, the defendant in addition to his denial, he may raise allegations against the plaintiff by filing counter claims, etc. In case the defendant denies the allegations, the plaintiff’s side is asked to adduce their evidences both written, documentary or oral evidences through witnesses. After completion of process of taking evidences of the plaintiff’s side, the defendant’s side is allowed to adduce his evidences in the same manner in support of his claim. Subsequent to the exchange of pleadings and evidences, the argument takes place and the Judge after hearing both sides and considering the evidences on record, pronounces the judgments in favour of either of the parties. In case, the defeated party is not satisfied with the judgment of the court of original jurisdiction, he may prefer an appeal before the appellate Court.[7]

The criminal proceeding is instituted either by a aggrieved party or by anybody on his behalf, lodging a complaint called an FIR in the Police Station, or the Police on behalf of the State in absence of any complaint from any person may also initiate suo-moto proceeding. Apart from this, a complainant may approach the appropriate criminal court of law by filing a complaint case alleging against the accused for causing injury and damage either to his person or to his property. In a criminal case where the Police case is registered, the Police after registration of the case conducts the investigation and for the purpose of investigation, the Police may arrest the accused persons in case of non-bailable offences. The Police, after investigation, submits the case before the concerned court. In the proceeding, under complaint case, after taking cognizance of the offence, the summon is issued to the accused persons, and thereafter the enquiry is conducted either through Magistrate or through the Police. In a criminal proceeding, the Public Prosecutor represents the State and conducts the case on behalf of the victim. The criminal court gives equal opportunities to the parties to represent their cases. The parties of a criminal case have the equal rights to produce their oral and documentary evidences and have the right to be represented and place their arguments through their advocates. The Court either punishes or acquits the accused person after hearing their arguments and after considering the evidences of both the sides. In case, the accused is punished, he has the right to prefer appeal, in the alternative in case of acquittal the victim also has the right to prefer an appeal before the appellate Court against the judgment and sentence of the original criminal Court of law.[8]

Rules of procedure is an important part of legal system or justice delivery system. Rules of procedure regulate how the law will be administered while deciding a case, i.e., the form, manner and order of steps taken in conducting a lawsuit. The rules are prescribed so that a fair, orderly, efficient and consistent application of fundamental justice to all cases, brought before a court, can be ensured. In absence of the systematic and formal rules of procedure, the legal system would become inefficient, unfair or biased and would imbalance the peace of the society. As a result, people will lose faith and respect on it. It includes rules about jurisdiction or authority of courts, institution of suits by means of complaint, report, etc., pleadings, serving notice to other parties, arrest or detention of persons, discovery, inspection and production of evidence, hearing, inquiries and trials, dismissal of suits, judgment, appeal, representation of counsel, cost, limitation and other matter, governing the process of lawsuits. Basically, these are the standardized guidelines or rules to hear and determine judicial actions.

The systematic development of the rules of procedure can be seen in the Vyavahārādhyāya of the Yājñavalkyasmṛti, which is of great effect in the judicial system. Judicial proceeding starts with the institution of the suit. Usually a suit or litigation is said to have begun with the lodging of a complaint to the king.[9] In the present judicial system also, no civil case can be started without a plaint though it is not always mandatory in case of a criminal case. An aggrieved person, whose rights are violated are directed by Yājñavalkya to open an action at law. Thus, he seems to discourage the king and his officers to initiate or promote a lawsuit on their own account. It is helpful to prevent the king and his officers from insisting people to litigate and increase the number of litigation among people out of desire for wealth or money. It is explicit in the Manusmṛti that neither the king nor anyone of his servants should start a lawsuit themselves or suppresses one which is presented before him by the people.[10] Nārada states more elaborately that they should be punished, who without having any relation of brother, father, son, appointed agent or being interested personally in the litigation institute any complaint.[11] That is how false litigation is forbidden among people.

It appears that perhaps among the Smṛtis, for the first time in the Yājñavalkyasmṛti, judicial procedure is divided into four parts. In the Yājñavalkyasmṛti, the judicial procedure is shown as having four feet, i.e., to contain four parts or stages[12] .

Vijñāneśvara explains these four pādas respectively:

  1. the petition of the complainant is the first stage called bhāṣāpāda,
  2. the second one is the reply of the defendant known as uttarapāda,
  3. adducing of evidence or proof is the kriyāpāda, the third stage and finally
  4. the fourth stage is the decision viz. sādhyasiddhipāda.[13]

Viśvarūpa mentions the four parts to be pratijñā, uttara, sādhana and nirṇaya, that come in order one after another.[14] Aparārka refers pratyākalita as one of the four stages, which means deliberation of the sabhyas, regarding the method and burden of proof.[15] He quotes Kātyāyana to support his view. According to Kātyāyana, pūrvapakṣa, uttara, pratyākalita and kriyā are the four parts of judicial proceeding.[16] The Mitākṣarā commentary has not accepted pratyākalita as a part of judicial procedure in the above prospective as litigants are not directly related to it.[17] When the claim of the plaintiff is admitted by the opposite party, then the judicial proceeding may have contained only two parts instead of four. In such case, there is not any need of kriyāpāda, i.e., the statement of complainant’s evidence and of sādhyasiddhi as there is nothing to be established by examination of evidence.[18] In a reply of denial only, the evidences are to be adduced. Otherwise, the reply of defendant itself proves the case.[19]

These four stages of judicial procedure are followed in all lawsuits such as ṛṇādāna, etc. Bṛhaspati also describes the four parts of a judicial proceeding in the light of Yājñavalkya. These are pūrvapakṣa, i.e. declaration of the plaintiff stating the case, uttara, which is the reply or answer of defendant, kriyā, i.e. the trial of the case and nirṇaya which is judicial decision.[20]

Nārada also lays down the four feet of judicial procedure but in a different manner, viz.

  1. dharma,
  2. vyavāhara,
  3. caritra, and
  4. rājaśāsana.

Dharma is said to be based on truth, vyavāhara depends upon witnesses, carita rests on usages or declarations reduced to writing, and rājaśāsana on king’s order or command.[21] However, normally the plaint, reply, proof and decision comprise the four feet or stages of vyavāhara, not dharma and the other three. The later can be considered as the four feet of decision (nirṇaya) which is one of the four stages of legal procedure.[22] So, dharma, etc., are the four feet of lawsuit in a long-drawn or indirect sense. The similar view is expressed by Bṛhaspati.[23]

In the Vyavahārādhyāya regarding bhāṣā, the first stage of judicial proceeding, the rule is set out that the allegations made by arthī should be written down in presence of pratyarthī when he appears before the court and is to be furnished with the year, month, fortnight, day, names of the parties, castes of the parties concerned, etc.[24] Arthī is one who seeks the help of the court, or who has a cause of action, and pratyarthī is the opposite one against whom assistance is sought in the court of justice.[25] It means the plaintiff and defendant of present day judicial system. They are also known by the name vādī and prativādī respectively whereas sometimes vādī denotes a ‘litigant’, who may be either plaintiff or defendant. Another word used to indicate an arthī is abhiyotṛ and that of the pratyarthī is abhiyukta. The information presented to the king or any officer in charge of administration of justice is called bhāṣā, meaning the plaint. Bhāṣā, pratijñā, pakṣa are the synonyms used to denote a plaint.[26] At the beginning, the plaintiff lodges a plaint to the king or in the court of justice informing his grievances, and after that when defendant comes, or is brought before the court, then the complaint is to be written again before the defendant with all details of year, month, fortnight, caste, names of parties, etc.[27] While writing the plaint or complaint in presence of defendant, it should be same as presented by the plaintiff, at the beginning, in his absence. There should not be any deviation from the previous charge or claim, i.e. the plaintiff first alleged. In case of any important discrepancy between the originally preferred complaint and the plaint finally recorded in front of opposite party, the case becomes fatal.[28] In this context, Viśvarūpa states that earlier the plaint should be noted down on the ground or on a board, and after that on leaf or paper when it has been revised.[29] It is pointed out by Vijñāneśvara that the amendment of the plaint should be permitted till the reply is not filed and not afterwards, otherwise, it may lead to infinite proceeding.[30]

Thus, Yājñavalkya’s rule of procedure wants the plaint to be equipped with details so that the allegations of plaintiff can be made specific and definite, placing time, place, object and the manner in which cause of action has arose. It ensures the presence of both the parties together at an early stage of judicial proceeding. Plaint is to necessarily disclosed the date and time relating to the cause of action, i.e. year, month, fortnight, day, etc., and the identity of the parties, i.e., the name, caste, etc., of the plaintiff and defendant. The other necessary details regarding the thing and subjectmatter of dispute, such as measure and quantity, place, exact time of the day, etc., are also to be included.[31] In this context, it is noteworthy that Order 7, Rule 1-8 of The Code of Civil Procedure also requires the plaint to contain necessary particulars like name, description, place of residence, etc., of plaintiff and defendant.[32] Aparārka restricts use of all the details in general for all suits but those important from the point of view of a particular lawsuit should be written down in the plaint.[33] For example, the reference of the year is not useful for all the lawsuits but specifically applicable in cases of mortgage, acquisition by gift or purchase. Vijñāneśvara observes that Yājñavalkya has not discussed separately the bad plaints. According to him, the reason behind it is that, those lacking the features or essential ingredients of plaints, as stated by Yājñavalkya, become bad from that very fact.[34] This does not seem to be the true explanation of such omission in the Yājñavalkyasmṛti. B.K. Swain is of the opinion that Vijñāneśvara has taken resort to an excuse to save the Yājñavalkyasmṛti from any probable charge of incompleteness as he was aware of the development made by Nārada, Bṛhaspati and Kātyāyaṇa on this matter.[35]

Both Vijñāneśvara and Aparārka have discussed elaborately, with illustrations, the characteristics of a bad, vitiated or defective plaint. Here, to make it clear, they have quoted from the other Smṛtis without mentioning the name. A plaint is liable to be rejected the subject-matter of which is impossible (aprasiddha), does not disclose any injury (nirābādha), without making any meaning (nirartha), without any cause of action (niṣprayojana), cannot be proved (asādhya), self-contradictory (viruddha).[36] The example of impossible subject matter of plaint is such ‘the defendant having taken my hare’s horn have not returned it’. ‘The defendant moves about in his house in the light of the lamp of my house’which constitutes the illustration for disclosing no injury. Causeless such as ‘This Devadatta reads in a charming voice near my house’, etc. Impossible to prove such as ‘Devadatta with his eyebrow broken laughed at me’. ‘I was abused by a dumb man’ explains contradictory, etc. The faults of plaint are mentioned and explained in the Nāradasmṛti.[37] It appears that the subtle details on drafting of a plaint gradually evolved after the composition of the Yājñavalkyasmṛti.

Yājñavalkya prescribes rule for the second stage of the judicial proceeding as the reply of the defendant given after he has heard the purport of the complaint, should be recorded in writing in presence of the plaintiff or the complainant.[38] Once the plaint is settled finally, and the contents of the plaint is made known to the defendant, it becomes the duty of the defendant to present or file his written statement, which should include proper answers to all allegations brought against him.

The Mitākṣarā quotes a text that a reply is held to be proper when it touches all the points raised in the plaint, which is reasonable, not ambiguous, devoid of self-contradiction, can be understood without further explanation.[39] It explains, with illustration, four types of answers that a defendant can take resort to citing texts ascribed to Nārada, Bṛhaspati and Kātyāyaṇa.

These are-

(i) saṃpratipatti or satya, i.e. by pleading the truth, which may be called confession or admission. For example the plaintiff charges the defendant that he owed one hundred rupees and the defendant replies in positive accepting the debt of hundred rupees,

(ii) mithyā i.e. denial of the complaint made against him. It is when charged with the debt of one hundred rupees, he replies as ‘I don’t owe the amount’,

(iii) pratyavaskandana, i.e. raising special plea. It is when in reply of the debt of one hundred rupees, the defendant accepts that he took it but at the same time states that later he has returned or that it has been donated to him,

(iv) pūrvanyāya, meaning plea of a former judgment. This type of reply is formed when the defendant says that the plaintiff was defeated earlier on a suit of the same grounds with him. Again, the reply by denial is of fourfold, viz. ‘This is false’, ‘I don’t know at all’, ‘I was not present there at that time’ and ‘I was not born then’.[40]

At the third stage, after recording defendants’ reply, trial begins with exhibition of the proofs. Therefore an important question arises regarding the party on whom the burden to proof his case first lies. It is interesting that Yājñavalkya, at an earlier time of Hindu judicial system, has dealt with such a complicated question. The order in adducing evidence is declared by the author that the plaintiff should immediately provide in writing the evidences in favour of his petition, by means of which he proposes to establish the facts alleged by him.[41] Usually the right belongs to the plaintiff or the complainant that he should come first to prove his case. It seems this rule is, in general, applicable in case of a reply of denial, but in other forms of reply, the right may shift even to the defendant also. While interpreting this provision, the Mitākṣarā takes the word arthī mentioned in rule of Yājñavalkyasmṛti in the sense of one who has gained a point. Thus, while saying that the plaintiff should furnish the evidences, meaning thereby the party who has to gain the point (i.e. in case of not adducing evidence by any party who will be defeated) should have recorded the means of proof. Therefore, when the reply pleads a previous judgment, the defendant has to give his means of proof to establish the fact of a previous judgment. In case of denial, the original complainant is to depose the means of proof. In a reply of defendant, disclosing a special plea, he himself has to prove it. So the duty lies on him to write down evidences. If the reply is in the nature of admission, then there is no requirement of proving any matter, and hence, after the second stage only, the case comes to an end.[42] Therefore, according to the Mitākṣarā, the plaintiff or defendant has to write down the evidence depending upon the nature of the case on whom the burden of proof lies.

At the fourth stage of judicial proceeding, the success or defeat of the party is to be decided. Yājñavalkya, for that purpose, declares that if the evidence produced by the party in favour of his petition holds good then he obtains success or otherwise the result goes against him, i.e. he is defeated.[43]

Yājñavalkya after stating the general rules of the four stages of judicial procedure deals with the particular rules relating to judicial proceeding. Yājñavalkya does not usually allow counter claim by the defendant before making himself free from the charges made by the plaintiff. He has incorporated an explanatory rule which is, until the complaint is disposed of, a counter charge should not be raised against him (i.e. the complainant or plaintiff), nor should anyone else be allowed to bring another case against him, who is already labouring under a charge, nor should change what has already been stated.[44] This means the defendant being an accused of an offence cannot lodge a complaint counter charging or claiming against a plaintiff until and unless the charges brought against the former are disproved or he acquits himself of the original complaint. There may arise various difficulties if two different charges against each other are to be tried simultaneously. A new complaint should not be filed against the same defendant until the case instituted by the first plaintiff is over. It is not proper to attack one who is already suffering from impeachment. In such a situation, he will not be able to defend himself in the case properly, which may cause injustice. The last of the rule may refer to not only the change of pleading by plaintiff but also change of pleading by defendant.[45]

The Mitākṣarā commentary takes this rule applicable to the plaintiff only in the sense that the complainant should never contradict his statement both at the time of making his petition and of writing it down before the defendant. Yājñavalkya has already set forth the rule that the complaint should be taken down before the defendant as it is alleged. It refers to the thing which is the subject-matter of litigation should not be altered at the time of writing down in presence of defendant. For example, the plaintiff complaining about theft of money cannot allege afterwards theft of cloth while writing before defendant. On the other hand, hereby the plaintiff is also forbidden from changing the title of litigation such as if he has complained about borrowing of one hundred rupees at interest, later on he cannot change the allegation to stealing of one hundred rupees.[46] The Mitākṣarā further states though the special plea (pratyaskanda) in the reply of the defendant is in the footing of a counter claim yet it is put forward just to remove the charge raised against him. Therefore, it is to be allowed and not to be restricted.[47]

One exception to the above-mentioned rule is provided that in kalahas (violence of speech and act, i.e. defamation and assault) and sāhasas (destruction of life or grievous hurt by means of weapons, poison, etc.), a counter charge will be permissible.[48] In these suits, a counter charge bears significance in order to hold a person legally responsible for an offence alleged against him. As such, it helps in determining the punishment to be inflicted. The Mitākṣarā explains this rule that the counter charge may be raised not to institute a new suit against the plaintiff, but to decide whether the punishment should be harsh or light. He clarifies it with an illustration, i.e. when the defendant is charged with beating the plaintiff one hundred times by a stick, the defendant also claims that he has been beaten first by the later and then he either can escape, from punishment or can get less punishment. However, counter claim does not hold good in cases of debt, property and the like.[49]

This rule of procedure is found in the Arthaśāstra where except in kalaha, sāhasa, in cases amongst members of guilds and corporate bodies, the defendant is not allowed to bring counter case.[50] This rule is not evident in the Manusmṛti. Nārada subscribes to the similar view of Yājñavalkya, but without giving any exception like Yājñavalkya permitting it in certain cases.[51] Hence, Nārada does not seem to allow counter charge in any of the cases whereas Yājñavalkya allows counter charge in certain cases like sāhasa, kalaha, etc.

An important rule of procedure, set forth by Yājñavalkya, resembles the present day procedure of courts, taking of bails, i.e. seeking security for costs and attendance of the parties. Both plaintiff and defendant are required to furnish security to ensure satisfaction of the final decision.[52] The security should be capable of carrying out the result of the judgment of the lawsuit. The principal object behind this rule was the proper execution of the final orders made by the court of justice. According to the Mitākṣarā, when anyone of the parties is not able to provide surety then court’s servants are to be appointed to take custody or take care of them and their wages should be paid every day.[53] Thus, a competent surety is taken from the defendant to comply with the decision, if passed against him, and from the plaintiff for payment of any fine, fee or cost of proceeding imposed by law, if found to have brought false charge.

Yājñavalkya prescribes a very strict rule of procedure towards unsuccessful plaintiffs and defendants after a contest. If after denial of the claim by the defendant, the plaintiff establishes the case by evidences, then the defendant must pay the suit amount to him and then equal amount to the king as a penalty. On the contrary, if the claimant is proved to be false, he must pay to the king as fine twice the amount as claimed by him.[54] Through this rule, the author discourages institution of a case with false claim by a plaintiff and false denial by defendant, rather expects a plaint to be based on truthful claims and admission of real liability on the part of the defendant. Hence a heavy fine of double the amount claimed by the plaintiff was imposed on him if his claim was found to be false. In the same way, the defendant was liable to pay equal amount claimed in the suit to the king too if his denial was found false. This rule seems to be precautionary which has been applied to reduce the fabricated litigation among the people.

Yājñavalkya refers to the rule regulating a lawsuit when attended by wager (sapaṇa) which also indicates prevalence of lawsuit without wager.[55] When a lawsuit is accompanied by a wager then the defeated party should have to pay the usual fine prescribed for a defeated party alongwith the amount of wager or stake to the king and the amount in dispute to the successful party.[56] Therefore, the amount of wager is needed to be paid after the judgment has been pronounced. A lawsuit is known to be with wager when either both of the parties or anyone of the parties to the suit promises to pay a certain sum of money in case he is defeated in addition to the original claim or amount in dispute. Here the Mitākṣarā is of the view that if wager is promised by one party only and not by the other party, in such case, when the former is defeated then he has to pay the amount of wager and while other party is defeated then amount of wager, is not to be paid by him.[57] These rules of procedure suggest about the payments to be made to the king after the suit is decided. These payments may be regarded as the court fees or stamp fees of modern judicial proceeding. The amount of money awarded as penalty to the party found guilty of either false plaint or false denial, the amount of usual fine declared on offences, the amount of wager-all these seem to constitute the compensation and cost to meet expenses of the court for trying the case. It appears that court fees were not required to be paid initially while instituting the proceeding as it happens nowadays.

Nārada distinctly mentions lawsuit with wager and without wager.[58] However, Nārada has not provided the rule pointing as to whom the sum staked should be given, which is distinctly shown in the Yājñavalkyasmṛti.

The rule relating to time limit to present the defence is also expounded by Yājñavalkya. He stresses on the nature of the cases while stating when the answer to pliant is to be given.

According to him, [in disputes about the following, the defence is to be made immediately]:—

  1. sāhasa (killing by poison or weapon),
  2. steya (theft),
  3. pāruṣya (abusive language, assault),
  4. gobhiśāpātyaya (heinous offences, to be imprecated for destruction of life and wealth, like killing a milk-giving cow, etc.) and
  5. strī (relating to women, e.g. malign treatment to a respectable lady or the deprivation of right of a female servant),

In other cases, granting of time depends upon the will of the court.[59] Some of the lawsuits need immediate answer. Nārada agrees with Yājñavalkya concerning the nature of lawsuits on which defendant is required to answer at once.[60] It may be observed here that the cases which command immediate answer, as laid down by Nārada and Yājñavalkya, are more of serious nature which fall under the categories of criminal cases. This rule is based on prudence. Speedy trial is the corner stone of the criminal justice. Excessive delay in pleading, i.e. presenting plaint and answer, etc., of criminal cases should be avoided to ensure speedy trial. Otherwise that may cause grave miscarriage of justice. It is natural that in the lawsuits of grave or serious injury, if answer is not given at an early time, then there may occur loss of evidence, such as death of a key witness or inability of witnesses to testify accurately after long delay. It can be a powerful means for the accused to escape from the offence committed by him. Long delay even can impair the ability of the accused to defend himself. The other cases, where Yājñavalkya leaves the decision of allowing time at the discretion of the court, seem to be of civil nature, e.g. debt, etc. Nārada lays down the rule of allotting exact number of days.[61]

Yājñavalkya has not made such rule, rather authorizes the court of justice to decide it, considering relevant aspects of the case. In some cases, time should be granted to ensure the fairness of justice so that the defendant gets opportunity to defend his case properly. The reason is well stated by Nārada that due to complicated nature of lawsuits and weakness of men’s memory, defendant should be allotted sufficient time to prepare his answer in order to ascertain the true facts.[62] Thus, Yājñavalkya shows his expertise, while providing this rule to speed up the process of justice for disposal of cases as early as possible without causing any injustice to either party and giving an opportunity to either party to participate therein.

Manu addresses a rigid rule in comparison to that of Yājñavalkya. Manu says that if a defendant does not put his answer within three fortnights then he loses the case.[63] Kauṭilya allows a time period of three or seven days for filing defence but after that being late, defendant has to pay fine. The time however can be extended maximum up to three fortnights, which is the longest time limit to present the answer. If he cannot reply even after three fortnights then punishment of fine for loss of suit and compensation to the plaintiff from goods belonging to him is imposed.[64]

Yājñavalkya in his rules of procedure lays down the rules describing minute details on the demeanour of the accused and witnesses through which the credibility or veracity of persons as such can be judged. The person being complainant or witness, if shows change from the natural or ordinary state by means of speech, activities of mind and bodily actions, is declared as duṣṭa, meaning wicked or tainted. The sign of changes can be marked in the activities such as, if he moves from one country to another which indicates shifting his position frequently, licks the corner of his lips, his forehead perspires, his face changes colour, his mouth dries up, he speaks hesitatingly, his speech contradicts very often. Moreover, he does not keep eye contact, he is not fast and straight in returning answers, and twists his lips.[65] These characteristics on change of conducts should not be induced by fear, etc., but due to natural consequence. The author’s intention does not seem to declare these characteristics of demeanour as conclusive proof of guilt, if it would have been so, then the judges would not have enjoyed any discretion. In such case, while seeing those features, the judges would have to consider the guilt as proved and there would not be any scope to allow the party to give evidence for the purpose of disproving it. The commentary of Aparārka makes this point quite clear that such features should not be treated as proof of guilt either of plaintiff or of witnesses. It helps to decide where the burden of proof lies, that means the party exhibiting these symptoms is to be examined carefully and to be asked to prove his innocence.[66]

The Mitākṣarā also holds the same opinion. He has explicitly refused that these are the indubitable proofs serving as ground of defeat. These suggest mere possibility of the fault on the part of the party concerned. The Mitākṣarā stresses that these signs are not mentioned as positive marks of the existence of defects, but suggest probability of existence of any defect, because the differences between a natural defect and a defect caused by special circumstances are difficult to know. Although a skilful person succeeds in bringing a distinction between the two, it will not be sufficient to cause defeat of the party in the suit. It is explained with simile that observing the symptoms of impending death in a dying man, the exequial rites would not be performed. Likewise, even if it can be inferred from the symptoms that the party may be defeated yet that would not be sufficient to cause an actual defeat of the party.[67] Thus, various types of facial expressions and strange behavior shown by the parties and witnesses before the court of justice should be examined thoroughly, which may manifest the acceptability or reliability of the testimony given by them.

Yājñavalkya specifies three grounds due to which a party becomes hīna, i.e. a losing party. He states that one who tries to substantiate a doubtful claim by grandiloquent speech without the help of proof, who flies away when charge is brought against him, who does not answer anything on being summoned is considered as faulty or weak party (hīnavādin). Yājñavalkya recommends imposition of punishment on such hīna.[68]

The Manusmṛti contains a more elaborate list of hīnas viz., one who changes the case later regarding what he means to proof earlier, who does not abide by the fact duly stated by himself on being questioned, who uses an improper place to converse with the witnesses, who refuses to answer a question properly or leaves the court of justice, who does not answer even after ordered to do so, who does not prove the allegations made by him, who does not know what is the first point and what is the second, who claims of having witnesses but being ordered to produce does not produce them.[69] Buhler translates the hīna declared by Manu as non-suited.[70] Manu suggests for imposition of punishment either of corporeal or of fine according to law on the plaintiff who does not speak. The punishment of defendant for not replying after three fortnights is said to be loss of his case. Likewise punishment for false denial or false declaration is double the amount of the impugned sum.[71] Nārada refers avasannas and hīnas differently.[72] J Jolly observes that the persons called hīnas are partly identical with those designed as avasannas.[73]

Nārada proclaims five kinds of hīna which are as follows:

  1. one who deviates from the former statement (anyavādī),
  2. one who avoids the judicial investigation (kriyādveṣīn),
  3. one who does not make his appearance before the court (nopasthāta),
  4. one who does not give reply (niruttara) and
  5. one who absconds when summoned (āhūtaprapalāyin).

There is not any provisions of punishments for avasannas and hīnas in the Nāradasmṛti.

The king is cautioned to be very attentive and careful during the trial and makes sure that he does not decide a lawsuit hastily. The king should deliver justice according to the facts, after refuting fraud or deception (chala), as even a claim based on the real state of facts is likely to be lost in judicial proceeding, if not presented properly.[74] It is the duty of the king to find out the truth in a lawsuit rejecting all the circumventions which the parties may try to adopt in a case for their personal gain. The trial of a suit presents a complex character in reality for which to come to a right decision has been stated to be difficult since, the parties to a suit act in personal interest. A party may win over the case with the help of false statement or evidences presenting trick fully and as a result true claimant may fail to prove his case. Nārada refers to the classic story of the saint Māndavya, who was tried and declared to be a robber unjustly by an injudicious king on the basis of legal rule presuming him robber when stolen objects are found with his property.[75] An innocent man may be suspected and charged with robbery because of finding the stolen property in his possession, on the contrary, the actual robber may get acquaintance of that charge. Therefore, it is necessary to stay alert and exercise great care on the part of the king or judges to discern a sound decision in legal process. They must try cases rationally, differentiating between true and false.

Yājñavalkya in the asādhāraṇavyavahāramātṛkāprakaraṇa proclaims an important rule that when all the allegations made in written are denied (by the defendant) and anyone of them is proved to be true than the king must compel him to give back or compensate for whole of the claim. It has been laid down further that the king cannot grant what has not been alleged in the original plaint.[76] It means if a party completely denies a claim either mentioned in the plaint or in the written statement and afterwards if the opponent establishes by evidence a substantial portion of it, then the judge may pass a decree against the denying party for satisfying whole of the claim. The purport of this rule of proceeding, according to the Mitākṣarā, can be illustrated in the following way. Let it be supposed that a complaint is instituted in writing by someone against a person that such person has taken from him fifteen gold coins, fifty silver coins, and two pieces of clothes. The person denies those charges absolutely in his reply. If the person complaining, can prove that the defendant has in his possession anyone of the articles stated in the plaint then he should be directed by the king to deposit all the rest, or its equivalent same thing or value. On the other hand, the complainant cannot mention any article exceeding those mentioned in the original plaint after the case is proved. Even if he does, so stating that he has forgotten earlier, the king must not entertain it.[77]

Therefore, it is necessary that one should draft the pliant carefully and specifically to ascertain the incorporation of all the claims. Material allegations and necessary particulars need to be included with certainty, which must be proved in order to establish the plaintiff’s right to relief claimed in the plaint. It seems to intend a strict rule of pleading. Pleading refers to plaint of the plaintiff and written statement or reply of defendant.

Magha says,

“Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contention will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer.”[78]

Thus, Yājñavalkya’s rule makes it clear that one cannot obtain later what is omitted in the paint. At present in India, under the Civil Procedure Code rules 7-8 of Order 7, it is held by the Supreme Court and other High Courts that the court cannot grant larger relief to the plaintiff, than what is claimed by him in the plaint, without being amended the plaint.[79]

The dictates of the Smṛtis on similar matters are found at variance sometimes. It creates confusion regarding the applicability of the rule while deciding a matter.

Yājñavalkya puts forward a rule to deal with such situation which reads-

smṛtyorvirodhe nyāyastu balavānvyavahārataḥ/
arthaśāstrāttu balavaddharmaśāstramiti sthitiḥ
//[80]

It means in the event of mutual conflict between two Smṛti texts, nyāya will have greater force or authority. The Mitākṣarā explains nyāya as principles of equity, i.e. the principles of logic or reasoning helpful in effecting and adjustment of the points at difference. Nyāya is said to have marked by the rules like viṣayavyavasthā, utsargāpavāda, vikalpa, etc., meaning respectively rule of adjustment, i.e. an adjustment of the several subjects which assigns or appropriates to each of them its proper place, the rule of general and special, the rule of option, etc. These rules can be derived from usages and practices, which are ancient so followed by the aged people and tested by either positive or negative assertion or agreement and contrariety, etc.[81]

On this rule, the Dīpakalikā, the Vīramitrodaya and the Aparārka have expressed a similar views that of the Mitākṣarā.[82] Viśvarūpa provides another sense of this passage that nyāya is superior to vyavahāra or nyāya supersedes vyavahāra, only and in case of conflict between Smṛti and nyāya, the former is of greater authority.[83] Jayaswal is of the opinion that Yājñavalkya has limited this rule to the vyavahāra, which indicates law portion proper of the Smṛtis.[84]

Thus, it appears that for the purpose of removing the contradiction, when the text of the Smṛtis, applicable to a given case is at difference, equity or reasoning based on the usages of experienced will prevail. Generally, it is the power and duty of the king and judges to decide the cases implementing the laws and rules as prescribed in the Smṛtis. Therefore, it is necessary to ascertain the real meaning of the law to apply it accordingly. When conflict arises between two or more Smṛtis, then equity, reasoning, principles of interpretation or construction should be followed to determine the matter in issue. It can help in understanding the correct sense of a provision of law. In precise, which one is conformable in a particular topic, according to logical principles is authoritative. This rule of Yājñavalkya seems to have resemblance with the doctrine that equity rather than bare letter of the law should be followed.

At the same time, Yājñavalkya makes the rule that the authority of the Dharmaśāstra is superior to the Arthaśāstra. In case of a conflict between the rules of the Dharmaśāstra and the Arthaśāstra, there is no scope of reconciliation though rule of equity or reasoning instead dictates of the Arthaśāstra will be assigned a subordinate position. Some examples cited by Viśvarūpa and Vijñāneśvara deserve mention here for proper understanding of this rule. It is declared by Viśvarūpa that the difference between the Dharmaśāstra and Arthaśāstra is shown by some of his predecessors in the following way. According to the vyavahāraprakaraṇa of the Arthaśāstra, one does not ever incur guilt by killing an ātatāyin (assassin or desperado).

Prāyaśittaprakaraṇa of the Dharmaśāstra says,

“For intentionally slaying a Brāhmaṇa no atonement is ordained”.

Hence, due to the superiority of the Dharmaśāstra rule, in killing a Brāhmaṇa ātatāyin one may incur guilt.[85] However Viśvarūpa does not find this illustration proper. Though the commentary of Vijñāneśvara refers to this example, he too thinks that this two kinds of texts are not in reference to one subject and so comparison of position that is superior or inferior does not arise. It has given an example of its own.

An Arthaśāstra text runs thus -

“As acquisition of a friend is superior to the acquisition of gold or land, so one should endeavour to acquire it.”

There is a text in the Dharmaśāstra, which says that being devoid of anger and avarice one should look after the lawsuits. Sometimes, these two texts conflict with each other. While deciding a lawsuit of fourfold nature, it may occur that securing success to one party would help in gaining friend but leads to violation of principles of the Dharmaśāstra. While acting according to the Dharmaśāstra, if success is secured to other party, then loss of friend will result from it. In such a situation, the rule of the Dharmaśāstra is to be followed instead of the Arthaśāstra as the former has more force than the latter.[86]

Nārada also accepts that in matters of inconsistency between the Dharmaśāstra and the Arthaśāstra, one should act as stated by the Dharmaśāstra and discard what is said by the Arthaśāstra. When the texts of the Dharmaśāstra contradict, the rule is that, a method founded on reasoning should be adopted.[87] Manu ordains a different rule which is restricted to Śruti only. It says that, if there is clash between two sacred texts (Śruti), then both are held to be law (dharma), because both are well pronounced by the wise as law.[88] This view seems to be somehow illogical.

The third stage of legal procedure, proclaimed by Yājñavalkya, is comprised of adducing evidence to establish the matter in dispute. It is of great importance as in the process of delivering justice. The court of justice has to ascertain the truthfulness of the assertions made by the parties. Evidence or the means of proof governs the area of assertions and ascertainment of its truthfulness. Law of evidence is relevant in deciding upon the disputed issues or facts in reaching to a conclusion. Yājñavalkya, anticipating it, directs while discussing the rules of procedure that writing or document (likhita), possession (bhukti) and witnesses (sākṣin) are the evidences (pramāṇa). In the absence of any one of those, ordeal or divine test (divya) is stated to be another evidence.[89]

Yājñavalkya has not directly given any definition of pramāṇa or evidence, but his description on one of the rules of procedure itself goes very close to a definition while he says that the plaintiff should write down without losing time, as soon as possible, those evidences by means of which the matter in dispute is to be established. Now here, the author mentions what those evidences are. Commenting on this rule, the Mitākṣarā further states that evidence may be defined as that by means of which a thing is proved, measured or correct knowledge can be gathered and discriminated. Evidences can be broadly divided into two categories, viz. human and divine. Likhita, bhukti and sākṣin are declared as the threefold character of human evidence.[90] In this rule, Yājñavalkya distinctly attaches the relative value meaning strength or weakness to human and divine evidence. This very text expressly recommends that ordeals or divine evidences are to be resorted as mode of proof only when none of the human evidences are possible or available. Thus, according to Yājñavalkya, divine evidences are having the least evidentiary value among all other means of proof.

The Mitākṣarā makes it clear that if one party to a lawsuit refers to any one of the document, possession or witnesses and the other party puts forward ordeals, in such a case, human evidence should only be relied upon and not ordeals. Moreover, when human evidence is adduced or availed by one party which meets only substantial portion of the allegations made in the plaint, there too human evidence should be resorted to instead of ordeals though it could have established the whole claim. This is explained with the help of an example. Suppose, in a case the plaintiff complains against a defendant that he has not paid back a loan of Rupees 100 at such interest taken from him. The defendant gives witnesses to establish the acceptance of the loan but nothing to prove the rate of interest. Even though plaintiff offers ordeal to prove the whole of the plaint, it will not be accepted according to this rule of procedure.[91] It shows the consciousness of the author about the proper application of justice by restricting the use of the ordeals.

It has been stated by Yājñavalkya that the defeat or victory of a party depends on the strength of the evidences adduced by that party. There are cases where both plaintiff and defendant may put forward evidences of same weightage and are true equally. Then, it becomes difficult to determine which one should get preference over the other. Yājñavalkya now gives the rule to be followed in such circumstances to know the strength of various proofs resorted by plaintiff and defendant, which in turn will decide the case or lead to a decision. In all lawsuits relating to property or monetary transactions, evidence established for a later transaction is of greater influence in deciding the case.[92] It signifies when evidences for both the parties have been proved, in the civil cases like debt, etc., the party setting up the latter transaction, wins the case. For example, if the plaintiff claims a debt by proving receipt and latter the defendant refutes its existence by repayment, then both having proved with the help of proper evidences, the evidences adduced by defendant for latter transaction has force and the case will be decided in his favour. An exception to this rule is provided that in a case of mortgage, gift and purchase or sale, evidence in support of the prior claim is stronger.[93] Therefore, the party who has proved a prior transaction succeeds in such a case. Thus, if a person gives his piece of land on mortgage to one first and then again mortgages to another, in such a case, the first one is entitled to the mortgaged property and not the latter.

Yājñavalkya’s rule of procedure contemplates the rule concerning order of examination of witnesses and shifting of burden of proof. This rule is not meant for any special kind of cases but for the trial of all kinds of cases in general. When there are witnesses available for both sides, the witnesses of the pūrvavādin are to be taken up first. The claim of him being invalidated, the turn comes next to the witnesses of the uttaravādin.[94] The commentators have interpreted this rule in two different sense depending upon the word pūrvavādin and uttaravādin. According to the Mitākṣarā, the term pūrvavādin does not denote him who first makes a complaint, but a person claiming priority such as either he has got it by gift, or he has enjoyed it at an earlier date.[98] He explains that, when both the parties have witnesses to produce, then the witnesses for the party claiming first in position to enjoy the subject-matter of dispute, should be examined first. If that party’s claim loses ground or importance, or becomes weak due to the admission of defendant about the prior state of things, but giving a subsequent plea to invalidate the prior state of things then the witnesses for other side should be examined. Most of the commentaries like the Dīpakalikā, the Vīramitrodaya and the Aparārka, etc. hold a contrary view to that of the Mitākṣarā. They accepts that a pūrvavādin is he who files the plaint or makes the complaint first, meaning the plaintiff.[99] Thus, if witnesses of both the parties are present, witnesses from the plaintiff’s side should be admitted, examined or accepted. The allegation of the plaintiff being reproached, the witnesses in support of the defendant should be examined.

Yājñavalkya has dealt with the law on evidence relating to the document, witness and ordeal as separate chapters and has not discussed within the chapter containing rules of procedure. It is worth mentioning that possession is described in the asādhāraṇavyavahāramātṛkāprakaraṇa. Thus, the author may have intended to make it more a part of rules of procedure than law. He seems to consider it not as a substantive law, but a right created by the procedure of proof. The Mitākṣarā establishes with reason the evidentiary value of possession, or how can it be a mode of proof. Possession can invariably and correctly measure the probative value of the sale and such other transactions on satisfying certain specified conditions. These are set up as the basis of ownership, which help to draw an inference, or when a direct inference cannot be drawn, a conclusion may be drawn by implication. Thus, possession may form part of either an inference (anumāna) or an implication (arthāpatti), and hence it is a good means of proof.[95] Possession as evidence is useful to certain special cases and circumstances.

The consequences of possession as evidence over certain kinds of property are emphasised by Yājñavalkya. The right of a person over land is lost in twenty years when he does not raise any protest even after seeing it being enjoyed by another person for that period of time and it is limited to ten years so far it relates to monetary or other movable property.[96] Aparārka supports the literal meaning of this rule that on fulfilling the special conditions, the original owner loses the ownership over immovable properties at the end of twenty years of adverse possession by wrongful possessor and loss of ownership over movable property occurs on ten years’ adverse possession.[97] A lost title is presumed on the possessor, thus possession becomes evidence. Here, it is inferred that the person having ownership is in possession, and thus, possession is evidence. Among the extant commentators, Viśvarūpa explains it first in the sense of modern concept of law that one must stay alert to one’s right. He states that, negligence can be a cause for loss of property. An owner should not neglect or keep silence after it comes to his notice that a stranger has been taking possession of it wrongfully. It may suggest the waiver of his right and consent to the act of wrongful possessor. Therefore, it may cause loss of the suit.[100]

The Mitākṣarā holds a different view. After going through an elaborate discussion, it draws the conclusion that, here the loss intended to be indicated is not of the ownership, nor of the right of a suit at law, but that of the profits of the land, as well as of the wealth. The owner, even if at law, gets back the land after twenty years possession by a stranger without any protest, having notice of it, then he has no right to claim for the profits due to his own fault of non-protest and of this text. It follows that he can secure the right to claim profit in case of a possession without notice, which is stated thus: paśyato’bruvato bhūmerhānirviṃśativārṣikī/ The passage abruvatoḥ, etc., suggest that in assessment of possession with notice but without protest also he may get a right to follow proceeds before twenty years.[101]

Manu holds that ten years of uninterrupted possession of immovable property by another person before the eyes of the owner, not being an idiot or a minor, the right of recovery at law is loss to him by law and the adverse possessor shall be entitled to retain that property.[102] Similar view is expressed in two verses of the Nāradasmṛti also.[103]

In yet another context, he states:

“Loss to the owner if they have enjoyed before him for twenty years.”

He has not made the point clear in which circumstances these are applicable. So, these two periods, mentioned by him, appear to be contradictory. Manu too has not suggested distinctly. It is only in the Yājñavalkyasmṛti, where the point is laid down unmistakably with conditions.

In India, at present times, the Limitation Act prescribes the time limit to be twelve years when the possession of the defendant becomes adverse to the plaintiff for possession of immovable property or any interest therein based on title.[104] Thus, Yājñavalkya, like an expert jurist, has already prescribed separate limitation period of movable and immovable property for adverse possession.

An exception to this rule is provided in the immediately succeeding verse.[105] This rule is applicable as a special rule to the above-mentioned general rule of possession. This rule seems to have been incorporated to prevent the misuse of the rules of possession which may result in miscarriage of justice. It states explicitly the cases, where the rule of law does not occur even if possession with knowledge, but without protest, continues for twenty years in land, etc., and for ten years in other immovable property.

Those special cases, which are exempted from these limitations, are as follows:

  1. Mortgaged or pledged articles or properties (ādhi),
  2. Boundary disputes (sīmā),
  3. An open deposit, i.e. wealth deposited in trust exhibiting the quality and quantity (upanikṣepa),
  4. Properties of mentally retarded or idiot (jaḍa),
  5. Properties of minor (bāla),
  6. A sealed deposit, i.e. kept in safe custody in another’s hand without mentioning its contents (upanidhi),
  7. Property of the king,
  8. Property of woman and
  9. Property belonging to Brāhmaṇa.

In these cases of the pledge etc., there exist proper and reasonable grounds, which explain the delay or negligence. As such, any kind of default of the party does not arise. In modern legal system of India, there are provisions under the Indian Limitation Act to protect the interest of some of the sections such as minor, persons of unsound mind, mortgagor etc.[106] Yājñavalkya protects the right and interest of the owners of nine kinds of properties from losing their title.[107] Besides, the author advances a rule imposing special penalty in such cases to the possessor enjoying forcefully for a long time depriving the rightful owner. He should be compelled to restore the principal amount of the subject of dispute to the owner. An equal amount or an amount according to his capacity is imposed on him as fine or penalty, which he has to pay to the king.[108]

Yājñavalkya proceeds to describe towards the relation between title and possession. He shows the relative strength of possession to form an evidence in this way–

“Āgama is superior to possession, but not to hereditary possession; even āgama is not a strong claim in the absence of possession”.[109]

According to Viśvarūpa, āgama means written document.[110] Vijñāneśvara defines it as the origin or source of ownership such as gift, purchase, etc., or meaning only title.[111] In the Vīramitrodaya, the derivative sense of āgama is given as by which becomes one’s own, i.e. origin of title such as sale, acceptance of a gift etc.[112] Aparārka by the term āgama denotes that which bestows the ownership, of sale, gift, etc.[113] Thus, the title originating out of purchase, gift, etc., is more powerful than possession. Again, title or deed of ownership is not superior to the possession, which has descended or handed down from the line of ancestors continued from the past three generations, such as the father and the rest. Even a title has no strength or force if there is no possession at least for a short while. It is accomplished by the Mitākṣarā that possession is good evidence of ownership when it is accompanied by the following five characteristics, i.e. it should be backed by title, long continued, without any interruptions or intervention; free from protest and with notice to the opponent.[114] This rule asserts that both possession and title lend support to each other and are inter dependent on each other to be an evidence of greater force. Possession, independent of title is powerful when it comes down from preceding line of ancestors. It is said to be a subject of smārtakāla. It can be turned as ‘legal memory’, suggesting a time limit beyond which it is supposed to be difficult to prove from memory, i.e. immemorial. While saying, ‘Title is superior to possession’ indicates possession within memory. Therefore, in case of possession within memory attains evidentiary value, if it is assisted by means of knowledge of title. On the other hand, immemorial possession can itself be an evidence without depending on title or deed of ownership. In such cases, existence of title is presumed from possession.[115] Title with possession is demonstrated as powerful evidence than mere title. Therefore, to make a title perfect, possession should co-exist even if it is for a shorter period, otherwise it becomes weak. Thus, it suggests that possession though not always necessary for effecting a valid transfer of ownership, yet to give weightage to title as evidence, possession is insisted upon.

Next, Yājñavalkya sets forth the rule that the man who has made the acquisition of a title, if any suit is brought against him, then he must prove the source of title. However, in case of son or grandson, possession has more force.[116] They need not prove the origin of the title handed down in a successive line of ancestors. In their case, irrespective of any other mode of proof, possession is sufficient to establish the claim. Their title will be exposed by possession. Thus, possession is the evidence of a legal title, which has passed from the father to son by the right of inheritance. The Mitākṣarā further makes it clear that this rule is also indicative that the first acquirer failing to prove his title is liable to be fined for unlawfully usurping possession but that is not applicable to son and grandson. They would be fined if they cannot establish hereditary possession and will not be able to retain the property.[117] It is directly stated by Nārada that possession can create legal title in case of property legitimately inherited from father.[118] Nārada’s opinion supports the rule of Yājñavalkya in this aspect.

Yājñavalkya presents an exception to the above-mentioned rule of possession that in a suit brought against son and grandson relating to property received from father or line of ancestors as inheritance, possession has the force to be a valid means of proof of his title. The trespasser or dishonest people may deceive the original owner with the help of this principle. It is observed by Mitramiśra that strict adherence to this principle of the text may lead to give decision in favour of an fraudulent action. Even sometimes within a very short span of time such as six months only, possession may be taken over by three generations.[119] In such situations, real intention of that rule will be defeated. Being conscious of these facts with the intention to safeguard the interest of true claimant, the author introduces the exception so that possession cannot be used as a weapon to legalise an illegal title. He says if a suit is filed against a person (the first owner), who happens to die before suit is decided without proving his title or ownership, then his son or legal successor must recover it by proving the lawful title as much as it would have been necessary in case of the deceased. Here possession without title cannot be resorted to by successors as a valid proof or evidence of ownership.[120] The Nāradasmṛti has a text giving the same import of Yājñavalkya. It declares if a litigant dies during the pendency of the suit instituted against him regarding property enjoyed by him, the son is required to prove the title since mere possession will not establish the claim or otherwise possession is not considered legitimate.[121]

Yājñavalkya tactfully prescribes the rules of procedure to regulate positive and negative aspects of possession as a mode of evidence. He has clearly expounded under what condition, possession inherits decisive power and when it does not.

Another very important rule furnished by Yājñavalkya corresponds to the modern rule of review. Under the modern judicial system, review or revision is the procedural provision connecting to both criminal and civil law. Through these procedures, every court or tribunal can correct an unintentional or negligent error, which arises in the decisions owing to procedural defect or by misrepresentation or fraud of a party to the proceeding which should be corrected to prevent the abuse of process of court. The general rule of procedure, advocated by Yājñavalkya, is that a suit decided by an inferior tribunal may be re-tried by the superior one. In such process, there seems to be none to review the case decided by the supreme one, i.e. the king. He has mentioned cases where even a suit decided by the supreme authority can be reopened for review or reconsideration, after which, the former decision may be set aside or reversed. The first ground is, when such decisions are obtained through fraud or force. Next ground can be identified as incompetency (of the litigant or the witnesses) being a woman or the like. Other grounds may include trials conducted during tile nights, in closed doors, outside the village, or with the enemies.[122] These are the exceptions to the finality of the judgement of the court of justice or the king’s court.

Moreover, Yājñavalkya refers some lawsuits as non-maintainable. These include lawsuits instituted by a drunkard, or intoxicated person; an insane person; a disabled person; one addicted to gambling; a boy of tender age; one under the influence of fear, etc., and that lodged by a person without any personal connection with the matter of dispute.[123]

The last four verses of the asādhāraṇavyavahāramātṛkāprakaraṇa are devoted to the rules which demonstrate how the king should deal with the property, recovered after it being lost, hidden treasure or those recovered from thieves and robbers. When a lost valuable article is recovered and brought before the king, it is his duty to restore it to the owner. To find out the real owner, Yājñavalkya puts forward the procedure that the claimant should be asked to establish his claim that it belongs to him by means of evidence. If he succeeds in identifying it by pointing out distinctive marks, quality, quantity, form and the like, then the king should give it to him. To prevent the untruthful claimants, Yājñavalkya lays down another rule. He who presses his claim but fails to substantiate or establish with proper identification marks etc., then he should be made to pay a fine equal to the amount of the article as penalty for setting up a false claim.[124] After that, rules regarding treasure of unknown ownership found hidden, also known as treasure trove (nidhi), are laid down.[125] If the treasure trove is found by the king, then half of it is to be given to the Brāhmaṇas, when a learned Brāhmaṇa comes by it, he can keep the whole nidhi. Any other except them having found the treasure trove, the king should take one sixth of that treasure trove. Though this meaning is apparent in the text of Yājñavalkya, yet according to the Mitākṣarā, the king should give one sixth of it to the finder and should keep himself the remaining treasure trove.[126] He further makes provision to punish the finder who without informing the king of its acquisition tries to misappropriate the whole nidhi.

From the above discussion, it may be deduced that Yājñavalkya intends to establish vyavahāra as a separate entity of dharma, containing what may be called secular or positive law in modern sense. For that purpose, the title of the chapter called Vyavahārādhyāya appears to be appropriate, from the contents, since, a judicial procedure containing the elements the plaint, the answer, the doubt, reasons, deductions, the evidences, the decisions, etc., along with its padas, i.e. subjects or titles of law are being set out there in. Moreover, the vyavahāramātṛkā delineated in the Vyavahārādhyāya of the Yājñavalkyasmṛti marks a high development of law of procedure, which is important for legal history of India and bears affinity to present day law of procedure.

Footnotes and references:

[1]:

Kane, P.V. and Patwardhan, S.G. (Edited and trans.), Op.cit., page232

[2]:

tatra prathama evādhyāye vyavahārasya vidhiḥ/ Aparārka on Yājñavalkyasmṛti, 2.1

[3]:

Vide, Sastri, T.G. (Edited), Yajñavalkyasmṛti with the comm. of Viśvarūpa,

[4]:

Vide, Panśīkar, W.L.S. (Edited), Yajñavalkyasmṛti with the comm. of Vijñāneśvara, Vyavahārādhyāya

[5]:

Vide, Apte, H. N. (Edited), Yajñavalkyasmṛti with the comm. of Aparārka,

[6]:

Yājñavalkyasmṛti, 2.1-36

[7]:

cf., Code of Civil Procedure, 1908,

[8]:

cf., The Code of Criminal Procedure, 1973

[9]:

Yājñavalkyasmṛti, 2.5

[10]:

notpādayetsvayaṃ kāryaṃ rājā nāpyasya pūruṣaḥ// na ca prāpitamanyena grasetārthaṃ kathaṃcan// Manusmṛti,8.43

[11]:

yo na bhrātā na ca pitā na putro na niyogakṛt/ padārthavādī daṇḍyaḥ syād vyavahāre’pi vibruvan// Nāradasmṛti, 2.23

[12]:

catuṣpādvyavahāro’yam vivādeṣūpadarśitaḥ// Yājñavalkyasmṛti,2.6-8

[13]:

tatra pratyarthino’grato lekhyaṃ iti bhāṣāpādaḥ prathamaḥ/ śrutārthasyottaraṃ lekhyamityuttarapādo dvitīyaḥ/tato’rthi lekhayetsadya iti kriyāpādastṛtīyaḥ/ tatsiddhau siddhimāpnotīti sādhyasiddhipādaśaturthaḥ/ Mitākṣarā, Ibid., 2.38

[14]:

pratijñā, uttaraṃ, sādhanaṃ, nirṇayaścetyevaṃ catuṣpāt/… tasmāt pratijñākrameṇaiva vivādakriyetyabhiprāyaḥ/ Bālakrīḍā , Ibid., 2.8

[15]:

atra ca siddhiśabdena sabhyānāmarthipratyarthiviṣayajayaparājayāvadhāraṇopāyabhūtaṃ pramāṇamasyedaṃ śāstrataḥ prāpnotīti vicārakāṇāṃ paramarśaḥ pratyākalitādiśabdavācya ucyate, siddhiphalatvāt/ Aparārka, Ibid., 2.8

[16]:

pūrvapakṣaścottaraṃ ca pratyākalitameva ca/ kriyāpādaśca tenāyaṃ catuṣpātsamudāhṛtaḥ// Kātyāyana quoted by Aparārka, Ibid., 2.8

[17]:

… pratyākalitasya… vyavahartuḥ saṃbandhābhāvācca na vyavahārapādatvamiti sthitam/ Mitākṣarā, Ibid., 2.8

[18]:

saṃpratipattyuttare tu sādhanā nirdeśābhāṣārthasyāsādhyatvācca na sādhyasiddhilakṣaṇaḥ pādo’stīti dvipāttvameva/ Ibid.

[19]:

tato’rthi lekhayetsadya iti mithyottaraviṣayam/ uttarāntare tu pratyarthīn eva pramāṇam/ Aparārka, Ibid., 2.8

[20]:

pūrvapakṣaḥ smṛtaḥ pādo dvitīyastūttarastathā/ kriyāpādastathā vācyaścaturtho nirṇayastathā// Bṛhaspati quoted by Aparārka, Ibid., 2.8

[21]:

dharmaśca vyavahāraśca caritraṃ rājaśāsanam/ catuṣpād vyavahāro’yamuttaraḥ purvabādhakaḥ// tatra satye sthito dharmo vyavahārastu sākṣiṣu/ caritraṃ pustakaraṇe rājājñāyāṃ tu śāsanam// Nāradasmṛti 1.10-11

[22]:

nanu-pratijñottarapramāṇanirṇayānāṃ vyavahārapadatvaṃ na dharmādīnāmiti… ucyate-nirṇayapādo dharmādyanusārena caturvidhaḥ/ tatra yadanusāreṇa yo nirṇayaḥ sa tacchabdena nirdiśyate/ Smṛticandrikā, Vyavahārakāṇḍa 1,page21

[23]:

dharmena vyavahāreṇa caritreṇa nṛpājñayā/ catuṣprakāro’bhihitassandigdhe’rthe vinirṇayaḥ// Bṛhaspati quoted on Smṛticandrikā, Vyavahārakāṇḍa 1,page21

[24]:

pratyarthino’grato lekhyaṃ yathāveditamarthinā/ samāmāsatadardhāharnāmajātyādicihnitam// Yājñavalkyasmṛti, 2.6

[25]:

arthyate ityarthaḥ sādhyaḥ so’syāstītyarthi tatpratipakṣaḥ pratyarthi…/ Mitākṣarā, Ibid.

[26]:

yathoktam-arthavaddharmasaṃyuktaṃ…/…yadāvedayate rājñe taddhāṣetyabhidhayite//iti/ bhāṣā, pratijñā, pakṣa iti nāthāntaram/ Ibid.

[27]:

āvedanasamaye karyamātraṃ likhitaṃ pratyarthino’grataḥ samāmāsādibiśiṣtaṃ likhyata iti biśeṣaḥ/ Ibid.

[28]:

yathā yena prakāreṇa purvamāvedanakāle āveditaṃ tathā/ na punaranyathā/ anyathāvāditvena vyavahārasya bhangaprasangāt/ Ibid.

[29]:

pūrvaṃ ca bhūmāvālikhya pratijñāṃ śodhayitvā paścāt patrāropaṇaṃ kāryam/ Bālakrīḍā onYS.,2.6

[30]:

śodhanaṃ ca yāvaduttaradarśanaṃ kartavyaṃ nātaḥ param/ anavasthāprasaṅgāt/ Mitākṣarā, Ibid., 2.6

[31]:

saṃvatsaramāsapakṣatithivāradinā-arthipratyarthināmbrāhmaṇajātyādicihnitam/ ādiśabdena dravyatatsaṃkhyāsthānavelākṣamāliṅgādīni gṛhānte/ Ibid.

[32]:

Takwani, C.K., Civil Procedure, page218

[33]:

yeṣāṃ madhye yāni…nānyeva lekhyāni/na sarvā ṇi prayojanābhāvāt/ Aparārka, Ibid.,2.6

[34]:

evaṃ pakṣalakṣane sthite pakṣalakṣaṇarahitānāṃ pakṣavadavabhāsamānānāṃ pakṣābhāṣatvaṃ siddhameveti yogīśvareṇa na pṛthakpakṣābhāṣā uktaḥ/ Mitākṣarā, Ibid.,2.6

[35]:

Swain, B.K., Op.cit., page52

[36]:

aprasiddhaṃ nirābādhaṃ nirarthaṃ niṣprayojanaṃ/ asādhyaṃ vā viruddhaṃ vā pakṣābhāsaṃ vivarjayet// iti quoted by Mitākṣarā and Aparārka on Yājñavalkyasmṛti,2.6

[37]:

Nāradasmṛti, 2.8-14

[38]:

śrutārthasyottaraṃ lekhyaṃ pūrvāvedakasaṃnidhau/ Yājñavalkyasmṛti, 2.7

[39]:

pakṣasya vyāpakaṃ sāramasṃdigdhamanākulan/ avyākhyāmyamilyetaduttaraṃ tadvido viduḥ//iti quoted by Mitākṣarā, Ibid.

[40]:

tacca caturvidham-saṃpratipattirmithyā…cāyaṃ vyavahāramārgeṇa parājita iti// Mitākṣarā on Yājñavalkyasmṛti, 2.7

[41]:

tato’rthī lekhayetsadyaḥ pratijñātārthasādhanam// Yājñavalkyasmṛti,2.7

[42]:

arthī pratijñātārthasādhanaṃ lekhayediti vadatā yasya sādhanaṃ lekhayediti vadatā yasya sādhyamasti sa pratijñātārthasādhanaṃ lekhayedityuktaṃ… vyavahāraḥ parisamāpyata iti gamyate/ Mitākṣarā, Ibid.

[43]:

tatsiddhau siddhimāpnoti viparītamato’nyathā/ Yājñavalkyasmṛti, 2.8

[44]:

abhiyogamanistīrya nainaṃ pratyabhiyojayet/ abhiyuktaṃ ca nyāyena noktaṃ viprakṛtiṃ nayet// Ibid.,2.9

[45]:

Vide, Kane, P.V. and Patwardhan, S.G. (ed.and trans.), Op.cit., page235, n.46

[46]:

anyenābhiyuktamanistīrṇābhiryogamanyo’rthi nābhi yojayet/kiṃca/ uktamāvedanasamaye yaduktṃ tadviprakṛtiṃ viruddhabhāvaṃ na nayenna prāpayet/…nanu–‘prtyarthino’grato lekhyaṃ yathāveditamarthinā’ ityatraivedamuktaṃ kimarthaṃ punarusyate noktaṃ viprakṛtiṃ nayediti/…tatra vastvantaragamanaṃ niṣiddhamiha tu padāntaragamanaṃ niṣiddhyata iti na paunaruktyam// Mitākṣarā on Yājñavalkyasmṛti, 2.9

[47]:

yadyapi pratyavaskandanaṃ pratyabhiyogarūpaṃ tathāpi svāparādhaparihārātmakatvānnāsya pratiṣedhaviṣayatvam/ Ibid.,

[48]:

kuryātpratyabhiyogaṃ ca kalahe sāhaseṣu ca/ Yājñavalkyasmṛti, 2.10

[49]:

nātra yugapadvyavahārāya pratyabhiyogopadeśaḥ apitu nyūnadaṇḍaprāptaye adhikadaṇḍanibṛttaye vā/… kalahādau pratyabhiyogo’rthavānṛṇādānādiṣu tu nirarthaka eva/ Mitākṣarā, Ibid., 2.10

[50]:

abhiyukto na pratyabhiyuñjīta anyatra kalahasāhasasārthasamavāyebhyaḥ/ na cābhiyukte’bhiyogo’sti/ Arthaśāstra,3.1.25-26

[51]:

Nāradasmṛti, 1.55

[52]:

ubhayoḥ pratibhūrgrāhyaḥ samarthaḥ kārkyanirṇaye// Yājñavalkyasmṛti,2.10

[53]:

tasyāsaṃbhave’rthipratyarthino rakṣane puruṣā niyoktavyāḥ/ tebhyaśca tābhyāṃ pratidinaṃ vetanaṃ deyam/ Mitākṣarā, Ibid., 2.10

[54]:

nihnave bhāvito dadyāddhanaṃ rājñeca tatsamam/ mithyābhiyogī dviguṇamabhiyogāddhanaṃ vahet/ Yājñavalkyasmṛti, 2.11

[55]:

sapaṇaścedvivādaḥ syāditi vadata paṇarahito’pi vivādo darśita iti/ Mitākṣarā, Ibid., 2.18

[56]:

sapaṇaścedvivādaḥ syāttatra hīnaṃ tu dāpayet/ daṇḍaṃ ca sapaṇaṃ caiva dhanine dharnameva cu// Yājñavalkyasmṛti, 2.18

[57]:

yatra punarekaḥ kopā… anyastu parājito daṇḍaṃ dāpyaḥ na paṇam/ Mitākṣarā, Ibid.

[58]:

Nāradasmṛti, 1.4-5

[59]:

sāhasasteyapāruṣyagobhisāpātyaye striyām/ vivādayetsadya eva kālo’nyatrecchyā smṛtaḥ// Yājñavalkyasmṛti,2.12

[60]:

Nāradasmṛti, 1.45

[61]:

śvo lekhaṃ vā sa labhet tryahaṃ saptāhameva ca/ artho tṛtīyapāde tu yuktaṃ sadyo dhruvaṃ jayī// Ibid., 2.3

[62]:

Ibid.,1.44

[63]:

Manusmṛti,8.58

[64]:

Arthaśāstra, 3.1.29-31

[65]:

deśāddeśāddeśāntaraṃ yāti sṛkkiṇī parileḍhi ca/ lalāṭaṃ svidyate sāsya mukhaṃ vaivarṇyameti ca// pariśuṣyatskhaladvākyo viruddhaṃ bahu bhāṣate/ vākcakṣuḥ pūjayati no tathoṣṭhau nirbhujatyapi// svabhāvādvikṛtiṃ gacchenmanovākkāyakarmabhiḥ/ abhiyoge ca sākṣe vākṣe vā duṣṭḥ sa parikīrtitaḥ// Yājñavalkyasmṛti,2.13-15

[66]:

tasmānnaitāni duṣtatāyāṃ pramāṇāni kiṃtu vādiprativādinormabhye kaḥ pramāṇaṃ karotviti jijñāsāyām/ Aparārka, Ibid.

[67]:

etacca doṣasaṃbhāvanāmātramucyate na doṣaniścayāya/… evamasya parājayo bhaviṣyatīti liṅgādavagate’pi na parājayanimittakāryaprasangaḥ/ Mitākṣarā,Ibid.

[68]:

saṃdigdhārthaṃ svatantro yaḥ sādhayadyaśca niṣpatet/ na cāhūto vadetkiṃciddhīno daṇḍyaśca sa smṛtaḥ// Yājñavalkyasmṛti,2.16

[69]:

Manusmṛti, 8.54-57

[70]:

Max Muller, F.(Edited), The Sacred Books of The East, Volume25, page264.

[71]:

Manusmṛti,8.58-69

[72]:

Nāradasmṛti, 2.32-33

[73]:

Max Muller F. (Edited), Op.cit, Volume33, page32, Foot Note33

[74]:

chalaṃ nirasya bhūtena vyavahārān nayennṛpaḥ/ bhūtamapyanupanyastaṃ hīyate vyavahārataḥ// Yājñavalkyasmṛti,2.19

[75]:

Nāradasmṛti, 1.41-42

[76]:

nihnute likhitaṃ naikamekadeśe vibhāvitaḥ/ dāpyaḥ sarvaṃ nṛpeṇārthaṃ na grāhyastvaniveditaḥ// Yājñavalkyasmṛti, 2.20

[77]:

naikamanekaṃ suvarṇarajatavasttrādi/ likhitamabhiyuktamarthinā pratyarthi yadi sarvameva nihnute’pajānīte tadārthinaikadeśe hiraṇye sākṣyādibhiḥ pratyarthī bhābito’ngīkāritaḥ sarvaṃ rajatādyarthaṃ pūrvalikhitaṃ dāpyo’rthine nṛpeṇa/ nagrāhyastvaniveditaḥ bhāṣākāle aniveditaḥ taścādarthinā pūrvaṃ mayā vismṛta iti nivedyamāno na grāhyo na dāpayitasvyo nṛpeṇa/ Mitākṣarā, Ibid., 2.20

[78]:

Takwani,C.K., Op.cit, page182

[79]:

Ibid., page 223-224

[80]:

Yājñavalkyasmṛti, 2.21

[81]:

yatra smṛtyoḥ parasparato virodhastara virodhaparihārāya viṣayavyavasthāpanādāvutsargāpvādādilakṣaṇonyāyobalavānsamarthaḥ/ …vyavahārādvṛddhavyavahārādanvayanvayavyatirekalakṣaṇādavagamyate/ Mitākṣarā, Ibid.

[82]:

Vide, Dīpakalikā, Vīramitrodaya and Aparārka on Yājñavalkyasmṛti, 2.21

[83]:

smṛtervirodhe nyāyastu balavān/ kasmād vyavahārataḥ/…athavā smṛtinyāyavirodhe smṛtireva jyāyasī na tu nyāyaḥ/ Bālakrīḍā, Ibid., 2.21

[84]:

Jayaswal, K.P., Op.cit., page68

[85]:

yathārthaśāstre vyavahāraprakaraṇe uktaṃ-‘nātatāyeivadhe doṣo hanturbhavati kaścan’ iti/ punardharmaśāstre prāyaścittaprakaraṇe ‘kamatā brāhmaṇavadhe niṣkṛtirna vidhīyata’ it/tatra dharmaśāstrabalīyastvādātatāyīvadhe doṣaprasaṅga iti/ Bālakrīḍā on Yājñavalkyasmṛti, 2.21

[86]:

ucyate-‘hiraṇyabhūmilābhebhyo mitralabdhirvarā yataḥ/… tatrārthaśāstrāddharmaśāstraṃ balavat/ Mitākṣarā, Ibid., 2.21

[87]:

Nāradasmṛti, 1. 39-40

[88]:

śrutidvaidhaṃ tu yatra syāttatra dharmāvubhau smṛtau// ubhāvapi hi tau dharmau samyaguktau manīṣibhiḥ Manusmṛti, 2.14

[89]:

pramāṇaṃ liahitaṃ bhuktiḥ sākṣiṇaśceti kīrtitam/ eṣāmanyatamābhāve divyānyatamamucyate// Yājñavalkyasmṛti, 2.22

[90]:

pramīyate paricchidyate’neneti pramāṇam/ tañca dvividhaṃ mānuṣaṃ daivikaṃ ceti/ tatra mānuṣaṃ trividhaṃ likhitaṃ bhuktiḥ sākṣiṇaśceti kīrtitaṃ maharṣibhiḥ Mitākṣarā, Ibid.

[91]:

Mitākṣarā and Aparārka , Ibid.

[92]:

sarveṣvarthavivādeṣu balavayuttarā krīyā/ Yājñavalkyasmṛti, 2.23

[93]:

ādhau pratigrahe krīte pūrvā tu balavattarā// Ibid.

[94]:

sākṣiṣūbhayataḥ satsu sākṣiṇaḥ pūrvavādinaḥ/ pūrvapakṣe’adharībhute bhavantyuttaravādinaḥ// Ibid.,2.17

[95]:

bhuktirapi kaiścidviśeṣaṇairyuktā svatvahetubhūtakriyādikamavyabhicārādanumāpayantyanupapadyamānā vā kalpayantītyanumāne’rthāpattau cāntarbhavatīti pramāṇameva/ Mitākṣarā on 2.22

[96]:

paśyato’bruvato bhūmerhānirviṃśativārṣikī/ pareṇa bhujyamānāyā dhanasya daśavārṣikī// Yājñavalkyasmṛti,2.24

[97]:

ādhyādivyatiriktāyā bhumeḥ pareṇa pratyarthinā viṃśativarṣāṇi yāvadbhujyamānāyā arthinaḥ paśyata imāṃ bhūmimeṣa bhuṅkta iti pratyakṣamupalabhamānasyābruvato’nakṣipato hāniḥ svasvāmisaṃbandhābhāvo bhavati/ evaṃ bhūvyatiriktasya dhanasya daśa varṣāṇi bhujyamānasya hāniḥ/ evaṃvidhā hi bhuktistuṣṇīṃ bhutasya paśyataḥ svāmitve sati na ghaṭate/ kiṃtu bhoktureva svāmitve sati bhujyata iti bhavati tatra bhuktiḥ pramāṇam/… tasmādādhyādivyatiriktasya yathoktayā bhuktyā svatvasiddhiḥ/ Aparārka , Ibid.

[98]:

…pūrvavādinaḥ pūrvasminkāle mayā pratigṛhītamupabhuktaṃ ceti yo vadatyasau pūrvavādī na punaryaḥ pūrvaṃ nivedayati tasya sākṣiṇaḥ praṣṭavyāḥ/ Mitākṣarā,Ibid.

[99]:

Vide, Dīpakalikā, Vīramitrodaya and Aparārka on Yājñavalkyasmṛti, 2.17

[100]:

upekṣayāpi dravyanāśo bhavatītyto draṣtavyaṃ paraisbhujyamānaṃ nopekṣaṇīyamityabhiprāyaḥ/… upekṣāniṣedhamātraṃ caitat/ hānivacanaṃ tu nindā mātratvenopekṣakasya vyavahārapravṛttyayogyatāmātrajñaptiphalam/ Bālakrīḍā, Ibid., 2.24

[101]:

ucyate-bhumerdhanasya ca phalahāniriha vivakṣitā na vastuhānirnāpi vyavahārahāṇiḥ/ tathāhi-nirākrośaṃ viṃśativarṣopabhugadūrdhvaṃ yadyapi svāmī nyāyataḥ kṣetraṃ tathāpi phalānusaraṇaṃ na labhate/ apratiṣedhalakṣanātsvāparādhādasmācca vacanāt/ parokṣabhoge tu viṃśaterūrdhvamapiphalānusaraṇaṃ labhata eva, paśyata iti vacanāt/ pratyakṣabhoge ca sākrośe abruvata iti vacanāt/ viṃśateḥ prāk pratyakṣe nirākrośe ca labhate viṃśatigrahaṇāt/ Mitākṣarā, Ibid., 2.24

[102]:

Manusmṛti,8.147-148

[103]:

Nāradasmṛti, 4.1.79-80

[104]:

The Limitation Act, 1963 (36 of 1963), Article 65

[105]:

ādhisīnopanikṣepajaḍabāladhanairvinā/ tathopanidhirājastrīśrotriyāṇāṃ dhanairapi// Yājñavalkyasmṛti, 2.25

[106]:

cf., The Limitation Act, 1963 (36 of 1963), Article 61(a), Section 6,7, 10, etc.

[107]:

Yājñavalkyasmṛti, 2.25

[108]:

ādhyādīnāṃ vihartāraṃ dhanine dāpayeddhanam/ daṇḍaṃ ca tatsamaṃ rājñe saktyapekṣamathāpi vā// Ibid., 2.26

[109]:

āgamo’bhyadhiko bhogādvinā pūrvakaramā gatāt/ āgame’pi balaṃ naiva bhuktiḥ stokāpi yatra no// Ibid.,2.27

[110]:

āgamo lekhyam/ Bālakrīḍā, Ibid.

[111]:

svatvahetuḥ pratigrahakrayādiḥ āgamaḥ/ Mitākṣarā, Ibid.

[112]:

āgamaḥ krayapratigrahādiḥ/ āgacchati svībhavatyaneneti vyutpatteḥ/ Vīramitrodaya, Ibid.

[113]:

svāmibhāvapratipādakaḥ krayapratigrahādiko’rthaḥ…/ Aparārka , Ibid.

[114]:

ataśca sāgamo dīrghakālo nirantaro nirākrośaḥ pratyarthipratyakṣaśceti pañcaviśeṣaṇayukto bhogaḥ pramāṇamityuktaṃ bhavati/ Mitākṣarā , Ibid.

[115]:

āgamo’bhyadhiko bhogāditi ca smārtakālaviṣayam/… asmārte tu kāle yogyānupalabdhyabhāvenāgamābhāvaniścayā saṃbhavādāgamajñānanirapekṣa evaṃ saṃtato bhogaḥ pramāṇam/ Ibid.

[116]:

āgamastu kṛto yena so’bhiyuktastamuddharet/ na tatsutastatsuto vā bhuktistatra garīyasī// Yājñavalkyasmṛti,2.28

[117]:

anena cādyasya puruṣasyāgamamanuddharato daṇḍa ityuktaṃ bhavati/… anenāpi tṛtīyasya kramāyātabhogānuddharaṇe daṇḍo nāgamānuddharaṇe na viśiṣtabhogānuddharaṇe cetyabhihitam/ Mitākṣarā , Ibid.

[118]:

Nāradasmṛti, 4.1.90

[119]:

Vīramitrodaya on Yājñavalkyasmṛti, 2.29

[120]:

yo’bhiyuktaḥ paretaḥ paretaḥ syāttasya rikthītamuddharet/ na tatra kāraṇaṃ bhuktirāgamena vinā kṛtā// Yājñavalkyasmṛti,2.29

[121]:

tathārūḍhavivādasya pretasya vyavahāriṇaḥ/ putreṇa so’rthaḥ saṃśodhyo na taṃbhagapadaṃ nayet// Nāradasmṛti, 4.1.93

[122]:

balopādhivinirvṛttānvyavahārannivartayet/ strīnaktamantarāgārabahiḥ śatrukṛtāṃstathā// Yājñavalkyasmṛti,2.31

[123]:

mattonmattārtavayasanibālabhītādiyojitaḥ/ asaṃbaddhakṛtaścaiva vyavahāro na siddhyati// Ibid.,2.32

[124]:

pranaṣṭādhigataṃ deyaṃ nṛpeṇa dhanine dhanam/ vibhāvayenna celliṅgaistatsamaṃ daṇḍamarhati// Ibid.,2.33

[125]:

Ibid.,2.34-35

[126]:

itareṇa tu rājavidvadbrāhmaṇavyatiriktena avidvadbrāhmaṇakṣatriyādinā nidhau labdhe rājā ṣaṣṭhāṃśamadhigantre datvā śeṣaṃ nidhiṃ sayamāharet/ Mitākṣarā ,Ibid.,2.35

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