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VERSE 8.50

Section XII - Non-payment of debt

यः स्वयं साधयेदर्थमुत्तमर्णोऽधमर्णिकात् ।
न स राज्ञाऽभियोक्तव्यः स्वकं संसाधयन् धनम् ॥५०॥

yaḥ svayaṃ sādhayedarthamuttamarṇo'dhamarṇikāt |
na sa rājñā'bhiyoktavyaḥ svakaṃ saṃsādhayan dhanam ||50||

The creditor who shall himself recover his money from the debtor should not be prosecuted by the king, for recovering what is his own property. — (50)

Medhātithi’s commentary (manubhāṣya):

This verse serves to make clear what has been said before. If the creditor recovers his money from the debtor by means of ‘trick’ and the other methods, the King shall not tell him anything, such as — ‘why did you, without informing me, take from him by trick or fraud, his ornament, etc., for the purpose of recovering your debt? Why do you not return it to him?’ — (60)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 74), which explains the meaning to be that if a creditor adopts any of the five methods mentioned in the preceding verse, he should not be prevented by the king from doing so and in Kṛtyakalpataru (p. 80a).

Comparative notes by various authors:

Viṣṇu (6.18). — ‘A creditor recovering, by any means, the loan advanced by him shall not be reproved by the King.’

Yājñavalkya (2.40). — ‘If a creditor tries to recover an admitted debt, he shall not be reproved by the King.’

Nārada (1.123). — ‘A creditor who tries to recover his loan from the debtor must not be checked by the King, both for secular and religious reasons.’

VERSE 8.51

Section XII - Non-payment of debt

अर्थेऽपव्ययमानं तु करणेन विभावितम् ।
दापयेद् धनिकस्यार्थं दण्डलेशं च शक्तितः ॥५१॥

arthe'pavyayamānaṃ tu karaṇena vibhāvitam |
dāpayed dhanikasyārthaṃ daṇḍaleśaṃ ca śaktitaḥ ||51||

The man who denies a debt shall be made to pay the creditor’s due, proved by evidence, as also a small fine, according to his means. — (51)

Medhātithi’s commentary (manubhāṣya):

Even in the presence of convincing proof, if the debtor does not himself admit the debt, then recourse should not be had to ‘trick’ and the other means, — the King should be informed of it; and when summoned by the King, if the man ‘denies the debt,’ — saying ‘I do not owe him anything’ — then, on its being ‘proved by evidence’ — in the shape of written document, oral witnesses and possession, — and the man being made to confess that he does owe the debt, — he shall make the debtor repay the ‘creditor’s due,’ — ‘as also a small fine,’ a small penalty, which shall, later on, he fixed at the tenth part of the claim.

If the man he unable to pay the whole fine, he may be made to pay a fine even less than the tenth part. Or, the favour of the fine being inflicted according to the man’s means, — even less than the tenth part — may be taken as pertaining to the case of the man who denies the debt (not through perversity, but) through having forgotten all about it, through carelessness.

‘Evidence,’ proof, is of three kinds; thus enumerated elsewhere — ‘If one did not have a written deed executed, nor is there a witness, nor previous claiming, there the only means is the supernatural one (ordeal).’ — (51)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 76), which adds the following notes: — ‘Āpavyayamānam’, ‘denying’, — ‘Karaṇena,’ ‘by evidence, documentary and otherwise’, — ‘vibhāvitam’, ‘faced, convinced’; — such a debtor the king shall compel to pay the amount to the creditor; — and by reason of the man having denied what was true, the king shall exact from him a slight fine also.

It is quoted in Parāśaramādhava (Vyavahāra, p. 153), which adds that this rule is meant for the case where the debtor is a well behaved Brāhmaṇa; — in Vyavahāratattva (p. 61); — and in Kṛtyakalpataru (p. 80b).

Comparative notes by various authors:

Viṣṇu (6, 19-20). — ‘If the debtor, forced to discharge the debt, complains to the King, he shall be fined in an equal sum. If a creditor sues before the King and fully proves his demand, the debtor shall pay to the King, as fine, the tenth part of the sum proved.’

Bṛhaspati (11.62). — ‘A debtor denying his liability shall be compelled to pay, on the debt being proved, in court, by a document or by witnesses.’

VERSE 8.52

Section XII - Non-payment of debt

अपह्नवेऽधमर्णस्य देहीत्युक्तस्य संसदि ।
अभियोक्ता दिशेद् देश्यं करणं वाऽन्यदुद्दिशेत् ॥५२॥

apahnave'dhamarṇasya dehītyuktasya saṃsadi |
abhiyoktā diśed deśyaṃ karaṇaṃ vā'nyaduddiśet ||52||

On denial by the debtor, when asked in court to pay the debt, the complainant shall produce a witness, or adduce (other) evidence. — (52)

Medhātithi’s commentary (manubhāṣya):

When, in a court of justice, the debtor is asked by the King or the judge to repay the debt to (lie creditor, — if this is followed by ‘denial’ or evasion by him, — then the ‘complainant,’ — i e., the lender of the money, the creditor — shall ‘produce a witness’ who would prove his case , — ‘or adduce other evidence’ — in the shape of a document, etc.

The term ‘deśa’ (lit. place) indicates the man present at the place (where the money was lent); and though the term ‘kāraṇa,’ ‘evidence,’ stands for all forms of evidence, and as such includes the witness also, yet here it should be taken as standing for ‘evidence other than witnesses,’ according to the maxim of ‘the cow and the bull’ (‘Go-balīvarda’ where the term ‘go,’ being applicable to both the cow and the hull, is taken to mean the cow only); so that the phrase ‘shall adduce evidence’ must mean ‘shall adduce other forms of evidence.’

Or, the reading may be ‘abhiyukto diśeddeśam,’ and the meaning of this would be as follows: — The debtor, on being asked to pay, answers the claim by saying ‘it is true that I borrowed the money from him, but I paid it hack’; and when this happens, the man who was the complainant becomes the defendant, and on being thus made the defendant, he should question the debtor regarding the place — at what place did you repay the debt’? — as also regarding the time, — the mention of ‘place’ being only by way of illustration; — ‘or he shall adduce other evidence’ ‘(of non-payment)’; i.e., he should say ‘I have got other means of proving my claim’; or it may mean that ‘if he is unable to produce the witness he should show why ho is so unable’; and in this case the particle ‘vā,’ ‘or,’ should be taken to mean ‘ca,’ ‘and.’ — (52)

Explanatory notes by Ganganath Jha:

‘Deśam’ — There is no difference in the meaning assigned to the word by Medhātithi and Kullūka, — both taking it in the sense of ‘witness’; the meaning ‘place’, attributed to Medhātithi, is however found in Nandana In his interpretation of Medhātithi, Buhler has been misled by the explanation that Medhātithi has provided by another reading. (See Translation).

This verse is quoted in Kṛtyakalpataru (24b), which adds the following explanation: — When on being questioned in court by the king or the judge, the debtor denies all transaction with the creditor, then the latter who

is the plaintiff, should name the witnesses and cite other proofs in the form of written documents and so forth: — and in Vīramitrodaya (Vyavahāra, 29b), which explains ‘deśam’ as ‘witness’, expounding it as ‘diṣati artham yathādṛṣṭam’ and quotes Medhātithi’s explanation on ‘karaṇam’ also, which it explains as ‘other proofs’; it remarks that Medhātithi reads ‘kāraṇam vā samuddishet.’

Comparative notes by various authors:

Bṛhaspati (11.62). — (See under 51.)

Kātyāyana (Vivādaratnākara, p. 67). — ‘The debtor shall be openly arrested and kept in restraint before the assembly of the people, until he repays the dues, in accordance with the custom of the country.’

VERSE 8.53

Section XII - Non-payment of debt

अदेश्यं यश्च दिशति निर्दिश्यापह्नुते च यः ।
यश्चाधरोत्तरानर्थान् विगीतान्नावबुध्यते ॥५३॥

adeśyaṃ yaśca diśati nirdiśyāpahnute ca yaḥ |
yaścādharottarānarthān vigītānnāvabudhyate ||53||

He who mentions the wrong place, — or who, having mentioned it, retracts, — or who does not understand that his previous and subsequent statements are contradictory; — (53)

Medhātithi’s commentary (manubhāṣya):

It has been said before that on the debtor denying the debt, the creditor complains to the King , — i e., the complaint shall be lodged in the form — ‘At such and such place, at such and such time, such and such an amount of money was borrowed from mo by this man’; — and on being questioned, he may say ‘I was not at the place at the time,’ referring to the place and time that have been alleged by him as those at which the money was borrowed: and in this case he ‘mentions the wrong place.’ Or, the term ‘deśa’ may stand for the witness; and the text means ‘if he cites as witness a person whose presence at the time and place of the transaction is impossible.’

Having alleged the place, time, etc., ‘if he retracts,’ — saying ‘I did not say this.’

He who does not understand that his ‘previous statement’ — what he had alleged before — and his ‘subsequent statement’ — what he alleges afterwards — are ‘contradidory’; — or if he does not realise the discrepancy in his own behaviour.

‘Such a person shall be declared to have failed’ — this verbal clause (occurring in verse 57) has to be construed with each verse (from 53 to 57). — (53)

Explanatory notes by Ganganath Jha:

Medhātithi is again misrepresented by Buhler; he does not read ‘apadeśyam’, the reading adopted by him being ‘adeśam’. Nārāyaṇa also reads the same, not ‘apadeśyam.’ — Nandana reads ‘adeyam’, not ‘apadeśyam.’ Buhler has apparently confused verse 53 with 54, where Medhātithi reads ‘apadeśam’ for ‘apadeśyam.’

This verse is quoted in Smṛticandrikā (Vyavahāra, p. 108), which has the following explanation — ‘One who cites an impossible witness, or having cited a possible one, says that he has not cited him, or one who does not perceive inconsistencies in his own statement, is to be non-suited;’ — in Kṛtyakalpataru (p. 22b), which has the following notes: — ‘Adeśam’ (which is its reading for ‘adeśyam’), a place where the parties have never met; — ‘adharottarān arthān’, “former and latter” — ‘vigītān’, contradictory; — and in Vīramitrodaya (Vyavahāra, p. 31b), which adds the following notes: — ‘Ādeśyām dishati’, ‘says what is irrelevant or indecorous, — he who having said something says he did not say it’ — ‘who does not comprehend the inconsistencies in his own past and present statements’.

Comparative notes by various authors:

(verses 8.53-57)

Yājñavalkya (2.16). — ‘If one party tries to enforce his claim by himself, though it has been disputed, — or if on being called, he runs away, without saying anything, he should be non-suited and also fined.’

Kātyāyana (Smṛticandrikā-Vyavahāra, p. 107). — ‘If a party on being directed to speak out, does not speak, he should be immediately confined; and on the next day he should be declared to be non-suited.’

Nārada (Aparārka, p. 621). — ‘If a party proceeds to enforce his claim without applying to the King, he should be immediately punished and his claim not allowed.’

Nārada (2.32-33). — ‘One who takes to flight after haying received the summons, one who remains silent, one who is convicted of untruth by the deposition of witnesses, and one who makes a confession himself; — these are the four kinds of persons defeated, avasanna. One who alters his former statements, one who shuns judicial investigation, one who fails to appear, one who makes no reply, one who absconds on receiving the summons; — these are the five kinds of persons non-suited, hīna.’

Nārada (2.41). — ‘A man convicted by his own confession, one defeated through his own conduct, one whom the judicial investigation has proved to be in the wrong, — these three deserve to have their final defeat declared at the hands of judges.’

Bṛhaspati (5.5-6). — ‘One who absconds after receiving the summons, one who remains silent, one convicted by the deposition of witnesses, and one who admits the correctness of the charge; — these are the four losers of the suit. One who absconds loses the suit after three fortnights; one who remains silent, after a week; one convicted by the deposition of witnesses and one who has confessed, immediately.’

Kātyāyana (Aparārka, p. 622). — ‘After having declared his plaint, if he renounces it and says something else, then, having taken up a different position, he becomes non-suited. Having reduced his statement to writing, if subsequently he says something more or less than that, he becomes non-suited. After having preferred his claim, if he says I did not say this, or if he contradicts his former statement, he also should he declared to he non-suited. After having named his witnesses, if he, of his own accord, does not bring them up for deposition, he should be declared to be non-suited, after thirty days.’

VERSE 8.54

Section XII - Non-payment of debt

अपदिश्यापदेश्यं च पुनर्यस्त्वपधावति ।
सम्यक् प्रणिहितं चार्थं पृष्टः सन्नाभिनन्दति ॥५४॥

apadiśyāpadeśyaṃ ca punaryastvapadhāvati |
samyak praṇihitaṃ cārthaṃ pṛṣṭaḥ sannābhinandati ||54||

He who, having put forward a statement, subsequently retracts; and who on being questioned regarding a fact (previously) duly alleged, does not support it; — (54)

Medhātithi’s commentary (manubhāṣya):

The first half of the verse only re-iterates what has been said before, and it is only the second half that puts forward something new. What had been said in the first half of the preceding verse is exactly what is meant by the first half of the present verse.

‘Who having put forward a statement,’ — having said something — ‘subsequently retracts,’ — deviates from it, saying

‘I am not sure about the time and place’........., — ho also fails in his suit.

Having once ‘duly’ — with certainty, and clearly — ‘alleged a fact’, — if, ‘on being questioned about it’ — what do you means? — By what evidence do you prove your case?’ — if he loses faith in the allegation clearly made by himself, and proceeds to talk about irrelevant matters, with the motive that — ‘after due investigation I am sure to lose the case, I may just as well get over a little time,’ — then such a person also fails in his suit.

Or, the term ‘apadeśa’ may stand for fraud; the meaning being that if after having set up a fraud, he slinks away from it, saying — ‘I have a severe headache now, I cannot answer any questions,’ — or if he opens his case with false statements, — then also he fails in his suit. — (54)

Explanatory notes by Ganganath Jha:

‘Praṇihitam’ — ‘Duly stated by himself’ (Kullūka and Nandana); — ‘stated by himself in the plaint’ (Govindarāja); ‘duly ascertained’ (Rāghavānanda and Nārāyaṇa).

This verse is quoted in Kṛtyakalpataru which has the following notes: — ‘Apadiśya’, having put forward, — ‘apadeśam’, pretext, — ‘apadhāvati’, — retracts, — ‘samyak praṇihitam artham,’ what has been stated clearly and definitely, — ‘pṛsṭaḥ’, questioned as to what he has to say as against the statement of the other party, or what proofs he has in support of his own statement; — and in Vīramitrodaya (Vyavahāra, 31b), which has the following explanations: — ‘He who slinks away from the court under some pretext’, — ‘who does not pay heed — by answering, — to what has been said by others, even though fully comprehending what has been said’; — it quotes Medhātithi as reading ‘adeśam’ and reproduces his several explanations.

Comparative notes by various authors:

(verses 8.53-57)

See Comparative notes for Verse 8.53.

VERSE 8.55

Section XII - Non-payment of debt

असम्भाष्ये साक्षिभिश्च देशे सम्भाषते मिथः ।
निरुच्यमानं प्रश्नं च नेच्छेद् यश्चापि निष्पतेत् ॥५५॥

asambhāṣye sākṣibhiśca deśe sambhāṣate mithaḥ |
nirucyamānaṃ praśnaṃ ca necched yaścāpi niṣpatet ||55||

He who secretly converses with the witnesses in a place not fit for conversation, or who does not like the question being investigated, or who falls back; — (55)

Medhātithi’s commentary (manubhāṣya):

‘In a place not fit for conversation’ — i.e., hidden from others, — ‘who converses with the witnesses, secretly’ — i.e., alone, for fear of being overheard.

‘Who does not like the question,’ — the matter under enquiry — ‘being investigated’; and on the pretext of some work for the King himself, or by the favour of the Prince or the Minister, etc., manages to gain time; — and ‘who falls back,’ — ‘such a person fails’ is the verbal phrase to be construed here.

The ‘falling back’ mentioned here is the same as the ‘refracting’ mentioned before (in verse 51). the purpose of such repetition of the same idea has already been explained. We have to adopt some such distinction in order to guard the text against the charge of containing absolutely needless repetitions. — (55)

Explanatory notes by Ganganath Jha:

This verse is quoted in Kṛtyakalpataru (22b), which has the following notes: — ‘Asambhāṣye’ ‘in a place where no conversation should be held,’ — ‘niṣpatet,’ ‘should go away without mentioning his destination’; — and in Vīramitrodaya (Vyavahāra, 31b).

Comparative notes by various authors:

(verses 8.53-57)

See Comparative notes for Verse 8.53.

VERSE 8.56

Section XII - Non-payment of debt

ब्रूहीत्युक्तश्च न ब्रूयादुक्तं च न विभावयेत् ।
न च पूर्वापरं विद्यात् तस्मादर्थात् स हीयते ॥५६॥

brūhītyuktaśca na brūyāduktaṃ ca na vibhāvayet |
na ca pūrvāparaṃ vidyāt tasmādarthāt sa hīyate ||56||

 — He who, on being ordered to speak, does not speak; or who does not prove what he has asserted; — or who does not grasp the previous and subsequent statements; — such a person fails in that suit. — (50)

Medhātithi’s commentary (manubhāṣya):

This verse is found to state what has been already mentioned in the foregoing verses. The use of such repetitions has been already explained on the ground that wholesome advice should be repeatedly driven home.

The meaning of the words of the text is as follows: — The plaint having been filed and duly expounded by the complainant, when the defendant is asked to make his statement regarding the matter of the plaint, if he does not make a statement, even though repeatedly asked to do so; i.e., he who, having no proper answer to make, does not give any answer at all, thinking that if ho gave an unsuitable reply, his defeat would be certain, whereas if he kept quiet, it would be doubtful, also fails in his suit.

The time-limit in connection with the filing of the answer is going to be laid down (under 58) — ‘If he does not file the answer within three fortnights, etc.’ When the man is suddenly dragged to the court, since he does not know what the complaint against him is, he cannot find the right answer at once, and hence it is only right to grant a postponement, but when the law fixes the time-limit being fixed at ‘three fortnights,’ what is meant is that so many days are to be granted to the defendant, who proceeds to file portions of his answer within five, ten or twelve days, — and not that he is to keep absolute silence for such a long time. As for the law that allows of more time, — e.g., in the text ‘In some cases he may wait for one year, when there is non-understanding’ (Gautama, 13.28), — this should not be followed in practice; because if ‘non-understanding’ is sufficient cause for delay, why should it cease to be so after the lapse of one year only? Nor can there be any certainty as to the man, who does not grasp the plaint during one year, being able to grasp it after that time. Hence the postponement granted should he just for that period of time which may he regarded as a fair interval for the understanding of the suit and the finding of the answer. So that no more time shall be granted than what may be considered sufficient for a man of oven dull intelligence for the said purpose.

As regards the plaintiff, it is only right that he should file his plaint on the same day (that he presents himself before the Court); as he already knows that ‘such and such a man owes me such an amount,’ or that ‘such and such a man has done me this wrong’; and he takes action also entirely upon his own choice. So that when the man is setting forth his own case, why should he have a doubt upon any point (for the clearing of which he should need time)?

As for the defendant, on the other hand, he does not know anything about the complaint, when he is suddenly hauled up by the King’s officers; how then can he have any definite notion regarding either the plaint or the answer? He is in fact called upon to understand the plaint and find its answer at the spur of the moment; otherwise he would not be a ‘defendant’ at all.

Thus then, for the Plaintiff, it is necessary to complete his plaint, in regard to the case he has to prove, on the same day; or he may be granted two or three days. Both these views have been accepted by other Smṛtis: — e.g. (a) ‘The complaint should be always prepared with a definite idea of the ease and its proofs,’ and again: ‘He may strengthen his case for ten or twelve days’; and (b) ‘The plaintiff shall immediately set forth his case in writing’ (Yājñavalkya, Vyavahāra, 7).

As for the view that ‘postponement may be granted for one year,’ there is no authority for it, and as such it cannot be accepted. We cannot always assume the presence of Vedic texts corroborative of such Smṛti-texts as bear upon judicial proceedings, — in the same manner as we do in the case of the Smṛti texts dealing with the Aṣṭakā -offering; because the judicial proceeding is not of the nature of an act to be done. In fact, we have already shown that such assumption is not possible in the case of matters amenable to other moans of knowledge (than verbal authority).

This postponement of the complaint is not to be granted in all cases; since it has been laid down that — ‘In the case of heinous crimes, of theft, of assault, of charges in connection with cows, of wrong done to the life and property of women, the defendant should be made to answer the charge at once; in other cases the time has been declared to be allowable according to the wish of the Court’ (Yājñavalkya, Vyavahāra, 12). In the case of heinous crimes and the rest, if a long postponement were granted, then, during the interval, the defendant might propitiate the other party. It is for this reason that immediate answer has been required. Specially as in such cases, there can be no lapse of memory or other causes that would justify the postponement of the answer; because as a rule charges of heinous crimes are laid before the King immediately, for the simple reason that in such oases there is great urgency. For instance, in the case of the theft of clothes, there is always the chance of its former colour being altered during the interval. Then again, in such cases such witnesses as may have happened to be present by chance would he immediately available, while (if postponement were granted) they would have gone to other places, and, as their name and caste, etc., would not he known, they could not be traced and found. So that there would naturally be absence of requisite proof.

Further, in the case of non-payment of debt and other matters, the parties may settle it between themselves, in which the King cannot interfere; for when the case has been amicably settled, it is no business of the King’s to enquire how much of the claim has been paid. As for the criminal, on the other hand, it is the duty of the King to punish him, even though he may have come to terms with the plaintiff. For these reasons, the conclusion is that there shall he postponement only in the case of non-payment of debt and such cases, while in the case of crime, etc., immediate answer shall be demanded. To this end wo have the following declaration — ‘In the case of non-payment of debt, etc., postponement may he granted, for the purpose of finding out the truth, as disputes on such matters are intricate, and there is possibility of the defendant being incapable of supplying the answer at once, or of his having forgotten the facts of the case’; — and the meaning of this Smṛti text is that in a case, where the plaint happens to be an intricate one, it is only natural that being so intricate, it cannot he grasped Jut the spur of the moment, — and every one cannot remember, after the lapse of a long time, all the details clearly and in the correct order, in order to be able to offor a suitable answer.

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