with the Commentary of Medhatithi 198 страница

↑

⇐ ПредыдущаяСтр 204 из 350Следующая ⇒

“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.’

VERSE 8.4-7 [The Eighteen Heads of Dispute enumerated]

Section II - The Eighteen Heads of Dispute enumerated

तेषामाद्यं ऋणादानं निक्षेपोऽस्वामिविक्रयः ।
सम्भूय च समुत्थानं दत्तस्यानपकर्म च ॥४॥

वेतनस्यैव चादानं संविदश्च व्यतिक्रमः ।
क्रयविक्रयानुशयो विवादः स्वामिपालयोः ॥५॥

सीमाविवादधर्मश्च पारुष्ये दण्डवाचिके ।
स्तेयं च साहसं चैव स्त्रीसङ्ग्रहणमेव च ॥६॥

स्त्रीपुन्धर्मो विभागश्च द्यूतमाह्वय एव च ।
पदान्यष्टादशैतानि व्यवहारस्थिताविह ॥७॥

teṣāmādyaṃ ṛṇādānaṃ nikṣepo'svāmivikrayaḥ |
sambhūya ca samutthānaṃ dattasyānapakarma ca ||4||

vetanasyaiva cādānaṃ saṃvidaśca vyatikramaḥ |
krayavikrayānuśayo vivādaḥ svāmipālayoḥ ||5||

sīmāvivādadharmaśca pāruṣye daṇḍavācike |
steyaṃ ca sāhasaṃ caiva strīsaṅgrahaṇameva ca ||6||

strīpundharmo vibhāgaśca dyūtamāhvaya eva ca |
padānyaṣṭādaśaitāni vyavahārasthitāviha ||7||

Of these the first is (1) Non-payment of Debt; (then) (2) Deposits, (3) Selling without ownership, (4) Joint concerns, (5) Non-delivery of what has been given away, — [4] — (6) Non-payment of wages, (7) Breach of Contract, (8) Recision of Sale and Purchase, (9) Dispute between the Owner and the Keeper, — [5] — (10) Disputes regarding Boundaries, (11) and (12) Assault, physical and verbal, (13) Theft, (14) Violence, (15) Adultery, — [6] — (16) Duties of man and wife, (17) Partition, and (18) Gambling and Betting; — these are the eighteen topics that form the basis of law-suits. — (4-7)

Medhātithi’s commentary (manubhāṣya):

(verses 8.4-7)

‘Non-payment of debt’ is regarded as ‘first,’ foremost, only by reason of the order in which the several heads are found mentioned in the law-books. Or ‘first’ may mean ‘the most important,’ — its ‘importance’ lying in the fact that it affects even those who live in the forests.

Connected with the ‘non-payment of debt’ is also the subject of the ‘non-granting of the acquittance-receipt’; when, for instance, the debtor says to the creditor ‘I have repaid your debt, now let me have the acquittance receipt.’ This ‘nongranting of the acquittance-receipt’ is not the same as the ‘non-payment of debt’; but though not directly denoted by that term, it is implied by it.

What are included under the head of ‘non-payment of debt’ are thus enumerated (by Nārada, 3.17) — ‘What debt is payable and what non-payable, — when, how and to what extent? — as also the methods of delivery and receipt.’

Now ‘payable debt’ is that contracted by one’s self, that, contracted by his father, and by one whose property he inherits.

‘Non-payable debt’ is that contracted by one’s self, if (along with the interest) it exceeds the double of the principal, or that contracted by his father in gambling, etc.,’ as declared in the text — ‘That contracted by the son, or husband or father, etc.’ (Says Nārada, 3.17) — ‘A woman may not pay the debt contracted by her husband, or by her son, unless she has promised to pay it, or if the debt he one contracted by her jointly with her husband.’ Though all this is included under ‘payable debt,’ yet when it happens to be such as is contracted in gambling, etc., then by itself, irrespective of all other peculiar circumstances, it becomes ‘non-payable’; but all this ‘payability’ or ‘non-payability’ is in relation to the person called upon to pay; and bonce the names ‘payable’ and ‘non-payable’ may he taken as similar to the expression ‘gobalībarda’ (i.e., generally speaking, by itself, the debt is payable, but under special circumstances, pertaining to the person and the relationship to the original debtor, etc., it becomes non-payable).

‘To what extent’ (in Nārada’s text) means — ‘up to the limit of the double of the principal’; the distinction here also being as before. If we read ‘yatra’ (in Nārada’s text), this term would refer to the place and time of payment; the idea being that the debt shall he repaid where it was taken; but if the creditor so wish it, it may he paid at another place also. The time of payment also should as nearly as possible be the same. As regards time, it has been said that there is no desire to repay debts during the Autumn, the most suitable time being either the Summer, when the harvest has been gathered in, or whenever an income is expected.

‘How’ (in Nārada’s text); — i.e., so far as possible, the entire debt shall be paid; if this be not possible, then by instalments, till the whole is cleared off; and lastly, in the event of the debtor being entirely reduced to penury, he shall clear off the debt by service, as declared in verso 177 below.

‘The methods of delivery and receipt,’ — i.e., the signature of witnesses, the execution of deeds and so forth.

‘Assaults, physical and verbal’ (verse 6); — the compound ‘daṇḍavācike’ is formed in accordance with Pāṇini 5.4.106, the final ‘ṭhan’ affix being added according to 5.2.115.

‘Duties of man and wife’ (verse 7); — the compound ‘strīpumān’ is to be expounded as ‘striyā sahitaḥ pumān,’ — the compound belonging to the same class as the compound ‘śākapārthivaḥ.’ If it were formed as ‘stṛī ca pumaṃśca,’ the resultant compound would be ‘strīpuṃsadharmaḥ’ (according to Pāṇini 5.4.77). — (4-7)

Explanatory notes by Ganganath Jha:

(verse 8.4)

This verse is quoted in Mitākṣarā (on 2. 5); — in Nṛsiṃhaprasāda (Vyavahāra, p. 3 b); — in Vyavahāramayūkha (p. 1) which explains ‘anapākarma’ as ‘non-delivery’; — in Aparārka (p. 596); — in Vivādacintāmaṇi (p. 1); — in Smṛtisāroddhāra (p. 325); — in Nṛsiṃhaprasāda (Vyavahāra, p. 3 b); — in Kṛtyakalpataru (12b); — and in Vīramitrodaya (Vyavahāra, p. 89b).

(verse 8.5)

This verse is quoted in Aparārka (p, 596); — in Mitākṣarā (on 2.5); — in Vyavahāramayūkha (p. 1), which explains ‘anuśayaḥ’ as ‘paścāttāpaḥ’, ‘revoking — in Vivādacintāmaṇi (p. 1.) — in Smṛtisāroddhāra (p. 325); — in Nṛsiṃhaprasāda (Vyavahāra, p. 3b); — in Kṛtyakalpataru (12b); — and in Vīramitrodaya (Vyavahāra, 896).

(verse 8.6)

This verse is quoted in Aparārka (p, 596); — in Vyavahāramayūkha (p. 1); — in Mitākṣarā (on 2.5); — in Vivādacintāmaṇi (p. 1); — in Smṛtisāroddhāra (p. 325); — in Nṛsiṃhaprasāda (Vyavahāra, p. 3b); — in Kṛtyakalpataru (12b); — and in Vīramitrodaya (Vyavahāra, 89b).

(verse 8.7)

‘Vyavahārasthitau’ — ‘Giving rise to law-suits’ (Govindarāja); — ‘in deciding law-suits’ (Nārāyaṇa),

This verse is quoted in Mitākṣarā (on 2.5); — in Vyavahāramayūkha (p. 1), which explains ‘dyūta’ as ‘gambling with inanimate objects’ and ‘samāhvayaḥ’ as ‘gambling with animals,’ and notes that though theft, adultery, defamation and assault are all only forms of ‘crime’ (‘Sāhasa’) yet they have been mentioned separately, also, on the analogy of such expressions as ‘Gobalīvarda .’

It is quoted in Aparārka (p. 596), which explains ‘padāni’ as ‘sthāna’, ‘viṣāya’, ‘subjects;’ — in Vivādacintāmaṇi (p. 1); — in Smṛtisāroddhāra (p. 325); — in Nṛṣiṃhaprasāda (Vyavahāra, p. 3b); — in Kṛtya kalpataru’ (12b); — and in Vīramitrodaya (Vyavahāra, 89b.)

On verses 1-7 Vīramitrodaya (Vyavahāra, p. 4a) has the following notes: — ‘Vyavahārān,’ business described above, — ‘pārthivaḥ,’ the anointed Kṣatriya; — the term ‘nṛpaḥ’ implies that what is here enjoined applies also to those who, though not themselves kings, are appointed by the king to work for him; — ‘seated or standing’ may be options to be determined by the king’s capacity, or by the respectability or otherwise of the parties appearing before him the raising of the right arm is for calling the attention of suitors; the dress etc. are to be humble, so that the parties may not be confounded by his gorgeous attire; — ‘pratyaham’ shows that cases should be tried every day ; — ‘ deśadṛṣṭa’ are those customs and arguments that may have local application, such as the customs regarding the betrothal of girls (described above) among ‘northerners.’

Comparative notes by various authors:

(verses 8.4-8)

Nārada (1.16 et. seq.). — ‘Recovery of Debt, Deposits, Partnership, Resumption of Gift, Breach of Contract of Service; — Non-payment of wages, Sales effected by a person other than the rightful owner, Non-delivery of sold chattel, Recission of Purchase, Transgression of a Compact, Boundary-disputes, Mutual Duties of Husband and Wife, Law of Inheritances, Heinous offences, Abuse, Assault, Games, and Miscellaneous; — these are the eighteen topics of legal procedure.’

Bṛhaspati (2.5 et. seq.). — ‘Law-suits are of two kinds, according as they originate in demands regarding wealth or ininjuries. Law-suits regarding wealth are divided into fourteen kinds; and those regarding injuries into four kinds. (1) Lending money on interest, (2) Deposits (and Treasure Trove), (3) Invalid gifts, (4) Concerns of Partnership, (5) Nonpayment of wages, (6) Disobedience, (7) Disputes concerning Land, (8) Sale without ownership, (9) Revocation of sale and purchase, (10) Breach of agreements, (11) Law between wife and husband, (12) Theft, (13) Inheritance and (14) Gambling. — These are the fourteen titles regarding wealth. — (l) and (2) Two kinds of Insults, (3) Violence and (4) Criminal connexion with the wife of another man, — these are the four titles originating in injury.’

VERSE 8.8 [Constitution of the Court of Justice (continued)]

Section III - Constitution of the Court of Justice (continued)

एषु स्थानेषु भूयिष्ठं विवादं चरतां नृणाम् ।
धर्मं शाश्वतमाश्रित्य कुर्यात् कार्यविनिर्णयम् ॥८॥

eṣu sthāneṣu bhūyiṣṭhaṃ vivādaṃ caratāṃ nṛṇām |
dharmaṃ śāśvatamāśritya kuryāt kāryavinirṇayam ||8||

Taking his stand upon eternal morality, he shall form his decision on the suits of men who mostly carry on disputes in regard to the aforesaid points. — (8)

Medhātithi’s commentary (manubhāṣya):

The addition of the adverb ‘mostly’ is for the purpose of indicating the importance of the said heads of dispute. As a matter of fact, there are several other points of dispute also; e.g., (a) ‘you gave me this house to live in; why then do you give it to another person before the lapse of a year?’ This cannot he regarded as included under ‘non-delivery of what has been given away’; because in this case there is no surrendering of ownership (which is a necessary condition in gifts); the dweller is only permitted to dwell in the house; — again, (b) ‘you have made a window in your house in front of my platform.’

‘Taking his stand upon eternal Morality’; — Wealth and Pleasure are not ‘eternal.’ Or, the term ‘eternal morality’ may mean that he should follow that law or custom the beginnings of which cannot be traced; while he should not pay heed to such customs as may have been adopted only by the present generation; as such custom is not eternal. — (8)

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 596); — and in Kṛtyakalpataru (12b).

Comparative notes by various authors:

(verses 8.4-8)

See Comparative notes for Verses 8.4-7.

VERSE 8.9

Section III - Constitution of the Court of Justice (continued)

यदा स्वयं न कुर्यात् तु नृपतिः कार्यदर्शनम् ।
तदा नियुञ्ज्याद् विद्वांसं ब्राह्मणं कार्यदर्शने ॥९॥

yadā svayaṃ na kuryāt tu nṛpatiḥ kāryadarśanam |
tadā niyuñjyād vidvāṃsaṃ brāhmaṇaṃ kāryadarśane ||9||

When he himself may not carry on the investigation of suits, he shall appoint a learned Brāhmaṇa to do the work of investigation. — (9)

Medhātithi’s commentary (manubhāṣya):

The Brāhmaṇa who is thus appointed should be ‘conversant with the eighteen points, well versed in the Science of Reasoning, fully learned in the Veda and the Smṛtis, — being called the Investigating Judge.’

If, either on account of being absorbed in some other more important business, or on account of his inherent incapacity, the king does not investigate the suits personally, then he should appoint a ‘learned’ Brāhmaṇa. The ‘learning’ here meant is that pertaining to legal proceedings, and the man’s appointment itself is indicative of his possession of that learning; because no man deserves to be appointed to do a work which he does not know. A knowledge of the Science of Morality also comes useful, for the purpose of precluding the possibility of wrong decisions being taken under the influence of love or hate. If the man is conversant with Morality, even though love or hate may be present in his mind, yet, through fear of the said Science of Morality, he does not allow himself to be misled; and it is thus that a knowledge of the Science of Morality comes in useful. As for the knowledge of legal procedure, its presence is already implied; when the man is appointed to do the work of deciding legal cases, it follows that he is possessed of that knowledge without which such cases cannot he decided. The injunction regarding the impropriety of the man knowingly perverting his judgment is contained in other texts; and with a view to avoiding this our author is going later on to lay down other Measures: e.g., ‘Three persons learned in the Veda, and the learned man appointed by the king, etc.’ (verse 11). As for the knowledge of Sciences other than these, if it were made a necessary qualification for the man appointed to investigate legal cases, — such knowledge could only be regarded as meant for some unseen transcendental purpose.

‘Niyojyo vidvān syāt’ would be the right reading (in place of tadā niyuñjyād vidvāṃsam’); because ‘niyuñjyāt’ is grammatically wrong, the right form being ‘niyuñjīta’; as Kātyāyana’s Vārtika on Pāṇini 1.3.66 ordains the Ātmanepada ending for the root ‘Yuj’ preceded by prepositions ending in a vowel. — (9)

Explanatory notes by Ganganath Jha:

This verse is quoted in Parāśaramādhava (Vyavahāra, p. 21), which adds that the Brāhmaṇa so appointed is called the ‘Prāḍvivāka,’ ‘judge,’ who is to try the suits exactly in the same manner as has been laid down for the king; It adds a text from Nārada explaining the name ‘Prāḍvivāka — ‘The Prāḍvivāka is so called because he puts questions (prāṭ) upon the subject-matter of the suit and investigates it (Vivāka). — It is quoted also in Smṛticandrikā (Vyavahāra, p. 36); — in Kṛtyakalpataru (8a); — and in Vīramitrodaya (Vyavahāra, p. 10b).

Comparative notes by various authors:

Gautama (13.26). — ‘The King or the Judge or a Brāhmaṇa learned in the scriptures shall try the suit.’

Vaśiṣṭha (16.2). — ‘Let the King or his minister transact the business on the bench.’

Viṣṇu (3.73). — ‘Or let him entrust a Brāhmaṇa with the judicial business.’

Познавательные статьи:



Формы дистанционного обучения

Передача мяча двумя руками снизу

Значение правильной осанки для жизнедеятельности человека

Основные ошибки при выполнении передач мяча на месте