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na bhoktavyo balādādhirbhuñjāno vṛddhimutsṛjet |
mūlyena toṣayeccainamādhisteno'nyathā bhavet ||144||

The pledge shall not be used by force; using it thus, he shall renounce the interest; he shall satisfy the other party with its pr ice; otherwise he would be a stealer of the pledge. — (144)

Medhātithi’s commentary (manubhāṣya):

“It has been already declared in the preceding verse that — ‘when there is a profitable pledge, etc.’ — (why then should this he repeated?).”

True; but the case referred to in the preceding verse is that ‘where the using or profit is commensurate with the interest; when however the amount of interest is large, while the profit is small, if the creditor uses the pledge by force, he loses the whole amount of interest. In a case again where the pledge is in the form of land or a cow or some such thing, and the profit derived from it is not commensurate with the interest, — if the debtor does not pay the accumulated interest, and the amount of the principal also has not become doubled, — all the interest that the creditor obtains is in the form of the profit derived from the pledge; so that in this case the man’s interest is to be computed at what he has derived by way of that profit.

In a case where the pledge is in the form of clothes and other similar things, which cease to exist, by use, the creditor should ‘satisfy’ the debtor ‘with its price,’ and himself receive his interest. For, if he did not pay the price of the pledged article, ‘he would be a stealer of the pledge;’ i.e., ho should ho made to pay that penalty which he would have had to pay if he had actually stolen an article of the same kind as the pledge.

‘Stealer,’ ‘stēna,’ is thief.

Others explain the verse in the following manner: — In the event of forcible use, there is loss of interest; if the thing is to be used, it should be so only on payment of its proper price to the debtor; this has been thus declared — ‘the creditor should be made to pay the price of the thing in gold, in a case where it is used.’

This verse refers to the case where the debtor, at the time of depositing the pledge, distinctly says — “see that my pledge is not lost, — do not use it please, — in a few days I shall redeem it,” — and yet the creditor, not minding this, does make use of the article. — (144)

Explanatory notes by Ganganath Jha:

Clothes etc. are meant, according to Medhātithi; — clothes, ornaments etc. according to Kullūka and Rāghavānanda; — beds and so forth, according to Nārāyaṇa, who adds that the ‘value’ stands for “the profit made by the use of the pledge” — (Buhler).

This verse is quoted in Vivādaratnākara (p. 24), which adds the following notes: — If the creditor uses the pledge without the debtor’s permission, then he loses only a half of the interest; hut if he uses it, even though actually prohibited to do so, then he loses the whole interest; — if he does not give up the interest, then he should satisfy the pledger by paying him the price, fixed by valuation, of the use of the article pledged.

It is quoted in Vyavahāramayūkha (p. 76); — and in Kṛtyakalpataru (70a), which adds that if the thing has been only half used, and has not undergone change, then the man loses only half the amount of his interest, but if the thing becomes changed, then he loses the whole amount of the interest.

Comparative notes by various authors:

(verses 8.143-144)

See Comparative notes for Verse 8.143.

VERSE 8.145

Section XXVI - Pledges (ādhi)

आधिश्चोपनिधिश्चोभौ न कालात्ययमर्हतः ।
अवहार्यौ भवेतां तौ दीर्घकालमवस्थितौ ॥१४५॥

ādhiścopanidhiścobhau na kālātyayamarhataḥ |
avahāryau bhavetāṃ tau dīrghakālamavasthitau ||145||

Pledges and Deposits should not suffer much lapse of time; for being left over for a long time, they would be liable to appropriation. — (145)

Medhātithi’s commentary (manubhāṣya):

‘Pledges’ — already explained; — ‘Deposit’ — is that which is allowed to be used through considerations of friendship; — these should not he allowed to remain for a very long time; they should he redeemed as soon as the stipulated time arrives.

The time for the redeeming of the pledge is just when the principal, with accrued interest, has become double; and there is ‘lapse’ of this time, if the thing is not redeemed then.

For the deposit also, the right time to recover it is before the other party has occasion to think that the thing belongs to him by reason of his having the use of it. Beyond this time, there is ‘lapse of time.’

Neither pledges nor deposits ‘should suffer much lapse of lime;’ — i.e., they should not be allowed to suffer it.

The author explains the reason for this: — ‘They would be liable to appropriation’; — if they were allowed to remain longer than the above-mentioned time, and were not recovered till then, they would he liable to be appropriated.

For this reason, one should try to redeem the pledge as soon as the principal has become doubled.

This is merely a friendly advice; as a matter of fact, there can be no ‘appropriation’ of pledges and deposits, by any lapse of time; as it is going to be declared (in 149) that — ‘a pledge..... cannot be lost in consequence of use’; and it is the same idea that is referred to in the present text.

Others have held that the present advice refers to pledges only, — in reference to those cases where, even after the principal has become doubled, the party, through sheer wickedness, goes on wasting time, under the idea that the principal cannot increase any further, — and it is not possible to deposit or sell the thing at the time anywhere else, — and he is urged to this step only through his hatred for the creditor, who is prevented from earning more interest on his capital. And it is with reference to such cases that it has been declared that ‘they should be appropriated’ (this being the meaning of the words in this case). That is, if the man desists from redeeming the pledge with such motives, his right over the thing ceases. But if one fails to redeem it, for want of money, — in his case there should be neither ‘transference nor selling’ [as said above (143)].

Or the assertion ‘they become liable to appropriation’ may he taken as referring to the case where the debtor desists from redeeming the pledge, thinking that it lies safest in the custody of another person. — (145)

Explanatory notes by Ganganath Jha:

‘Upanidhi’ — ‘Anything lent through affection, for use’ (Medhāttlii, Govindarāja, Kullūka and Rāghavānanda); — ‘an additional pledge given in order to complete the security for the loan’ (Nārāyaṇa).

This verse is quoted in Kṛtyakalpataru (47a), which explains ‘ādhi’ as ‘pledged property’, and ‘upanidhi’ as property mortgaged and allowed to be used, such as agricultural land and so forth it cannot stand for property in the form of a sealed packet, as such property cannot be used.

Comparative notes by various authors:

Viṣṇu (6.7-8). — ‘The pledge shall be restored to the pledgee when the interest has reached its maximum amount; but he should not use an immovable pledge without special agreement.’

Yājñavalkya (2.58). — ‘The pledge becomes lost, if it is not redeemed on the principal becoming doubled; if it had been given for a limited time, it becomes lost on the lapse of that time; but there is no such losing in the ease of pledges that have been given for the enjoyment of the usufruct only.’

Śukranīti (4.5.415). — ‘The following cannot he lost by length of adverse possession: — Pledge, boundary-land, minor’s property, trust property, sealed deposit, female slaves, government property and property of the Vedic scholar.’

Bṛhaspati (11, 25, 28). — ‘When the time for payment has passed, and interest has ceased, the creditor shall become the owner of the pledge; hut till ten days have elapsed, the debtor is entitled to redeem it. Notice having been given to the debtor’s family, a pledge to be kept may he used after the principal has become doubled, and so may the pledge given for a fixed period, on the expiry of that period. When the principal has been doubled, or the stipulated period has expired, in the case of the pledge given for a fixed period, the creditor becomes owner of the pledge after having waited for a fortnight. If the debtor should pay the debt during that interval, he may recover the pledge even then.’

VERSE 8.146

Section XXVI - Pledges (ādhi)

सम्प्रीत्या भुज्यमानानि न नश्यन्ति कदा चन ।
धेनुरुष्ट्रो वहन्नश्वो यश्च दम्यः प्रयुज्यते ॥१४६॥

samprītyā bhujyamānāni na naśyanti kadā cana |
dhenuruṣṭro vahannaśvo yaśca damyaḥ prayujyate ||146||

Things used through favour are never forfeited; such as a milch cow, a camel, an ox or the animal that is made over for breaking in. — (146)

Medhātithi’s commentary (manubhāṣya):

‘Favour’ — friendliness. When such things as the ‘Cow’ and the rest are being used solely through the favour of the owner, they do not become ‘forfeited.’ ‘Forfeiture’ means the passing of the ownership of the former owner and the coming in of that of the person using them. And such ‘forfeiture’ does not take place in the case of the cow and other things being used through favour.

“As a matter of fact, in the case of all deposits, there is no forfeiture by mere using, — as is going to be declared under 149 below — wbat is the special feature there in the case of the cow and other things (that they should be separately specified)?”

Our answer is as follows: — The denial (in 149) of forfeiture in regard to deposits is in view of its possibility in accordance with the general law of forfeiture laid down in verse 147, which would be applicable to those cases also when the thing has been used for ten years without its losing its former shape. — So far as the cow and other animals are concerned, they cannot he articles of ‘deposit’; and hence people might be led to think that these do not come within the said prohibition (in 149). (Hence the necessity of emphasising the non-forfeiture of these separately.)

The name ‘milch cow’ is based upon the cow giving milk; this condition can last at best for one year; after which, becoming fit for the bull, she would cease to be ‘milch’ if she became pregnant; and after this, there might be an idea that she belongs to this person (who is keeping her) and not to Devadatta (to whom she really belonged); because what had been given by the latter for the use of the former was the cow calved for the ñrst time; and Devadatta allowed the man to use her and still continued to see her being used, in a form which is not the same as that of the animal that had been given in ‘deposit’; and hence the ‘deposit’ is that which is to ho used, and the use is not of that thing; under the circumstances, what sort of a ‘deposit’ would it be? And as the prohibition (under 149) pertains to ‘deposits,’ and the cow in question has ceased to be a ‘deposit’, — it was necessary to make a separate effort for precluding her forfeiture.

As regards the camel and other animals mentioned, after they have been used for ten years, they become entirely changed in shape. So that- these also would cease to be ‘deposits’ (in the true sense of the term).

‘Vahan,’ (‘ox’) has been taken by some as a participial adjective (meaning ‘riding’) qualifying the word ‘horse,’; they hold that what is here laid down does not apply to the ox. Others again take it as standing for the donkey, the mule and other beasts of burden.

‘For breaking in’ — ox and other animals — ‘made over’ — given for that purpose. Others hold that the present verse serves the purpose of implying the optional character of the prohibition. In the case of ‘deposits’ other than those enumerated here, there is sometimes ‘forfeiture.’ for instance, when clothes are used through favour and become worn out, there is ‘forfeiture.’ for when a new clothing has been handed over for use, and it becomes worn out by use, there can be no opportunity for the former owner to say — ‘Let me have my clothing, — if it has become worn out, let me have its price and thereby redeem the deposit.’ — (146)

Explanatory notes by Ganganath Jha:

This verse is quoted in Smṛticandrikā (Vyavahāra p. 157).

Comparative notes by various authors:

Bṛhaspati (9.11). — ‘A house, field, commodity or other property held by a person other than the owner, is not lost to the owner by mere adverse possession, if the possessor stands to him in the relation of a friend, relative or kinsman.’

VERSE 8.147

Section XXVI - Pledges (ādhi)

यत् किं चिद् दशवर्षाणि संनिधौ प्रेक्षते धनी ।
भुज्यमानं परैस्तूष्णीं न स तत्लब्धुमर्हति ॥१४७॥

yat kiṃ cid daśavarṣāṇi saṃnidhau prekṣate dhanī |
bhujyamānaṃ paraistūṣṇīṃ na sa tatlabdhumarhati ||147||

Whatever thing the owner meekly sees being used by others in his presence, for ten years, — that thing he does not deserve to recover. — (147)

Medhātithi’s commentary (manubhāṣya):

‘Whatever thing being used,’ etc. — such is the construction, ‘being used’ being brought back to the beginning.

‘Owner;’ — though this general term has been used, yet the person meant is the owner of the thing whose use is being ignored.

‘Whatever thing’ — includes all kinds of property, slaves, slave-girls, utensils large and small, and so forth; though all this is not usually spoken of as ‘dhana,’ ‘property,’ ‘wealth,’ — which name is applied to gold, silver and other valuable articles.

The moaning of the sentence thus is this: — “When the owner of a property sees, for ten years, a certain property of his being used by another person, — and says nothing, — i.e., does not file a suit before the king, nor says to the user before his family ‘how is it that you are using this thing which belongs to me?’ — such a man, after the lapse of ten years, does not deserve to ‘recover’ — obtain possession of — that thing; — i.e., his ownership entirely ceases.”

What is meant by ‘seeing’ is knowledge, and not actual seeing with the eyes; which latter is expressed by the term ‘in his presence.’

‘By others’ — is explained by some to mean not by collaterals or relatives; another Smṛti text adding these ‘collaterals and relatives’ as exceptions to the present rule: — ‘when a thing is used by relatives and collaterals, the ownership does not cease.’

This however is not right; as this explanation would make the rule indefinite; it being uncertain who are to be regarded as ‘collaterals’ and ‘relatives.’ If ‘relationship’ in general were meant, then there would be no one left (who would not hear some sort of relationship to the man). Consequently the text must be taken to mean that the rule hero laid down applies to all cases where some one else uses a thing belonging ṭo another person.

In this case however the term ‘others’ would be merely re-iterative, and as such superfluous. For there is no person to whom the term ‘other’ could be applicable. The wife, the father and the son are all spoken of as ‘one’s own self;’ specially in such texts as — ‘the wife is the half of one’s self,’ ‘it is one’s own self that is called the son.’ Hence between husband and wife, or between father and son, mere using cannot he regarded as a ground of ownership. In fact in their case also, if they are separated, when the time of using has arrived, if one does not use it, this fact becomes a precluder of his ownership. In the case of the wife’s dowry, if it has been pledged by the husband, her ownership does not cease by using, so long as the husband is alive, and the reason for this is that she is entirely dependent upon him, and there is no absolute separation between them; her dowry also has to be looked after by the husband; and the law also (verse 149) is found to make an exception in favour of the property of the king, the Vedic scholar, and women.

The present verse having described the loss of ownership of the owner who ignores adverse possession, the next verse proceeds to show to whom the said property passes over. — (147)

Explanatory notes by Ganganath Jha:

This verse is quoted in Smṛtitattva (II, p. 222), which adds the following explanation: — ‘If the rightful owner of a property looks upon his property being used by another, without his presenting it to him as a friendly gift, or some such thing, — and does not speak out, complain, — for ten years, then he is no longer entitled to receive it; i.e., his ownership over it ceases’; — in Vyavahāra-Bālambhaṭṭī (p. 101), — and in Vīramitrodaya (Vyavahāra, 65b).

Comparative notes by various authors:

(verses 8.147-148)

Gautama (12.37-38). — ‘The property of a person who is neither an idiot nor a minor, having been used by strangers before his eyes for ten years, comes to belong to him who uses it; but not if it is used by Vedic Scholars, ascetics or royal officials.’

Vaśiṣṭha (16.17) — ‘Whatever property belonging to one has been enjoyed by another person for ten years continuously is lost to the owner.’

Yājñavalkya (2.24). — ‘If a man sees his landed property being enjoyed by others, and does not complain about it, he loses it after twenty years of such possession: in the case of other properties, ownership lapses after only ten years’ adverse possession.’

Śukranīti (1.5.443-46). — ‘The property which is ceaselessly enjoyed for sixty years, even without title, cannot be claimed hack by anybody. The following cannot he destroyed by length of adverse possession: pledge, boundary-land, minor’s property, trust property, sealed deposit, female slaves, government property and property of the Vedic Scholar. The owner who is indifferent to his property and does not complain about trespasses on his property, cannot, get hack by law-suit that property, on the expiry of the above period.’

Nārada (1.78-80). — ‘If a man is foolish enough to allow his goods to he enjoyed by strangers in his own eyesight, they shall belong to the possessor, even in the presence, and during the life-time, of the rightful owner. Whatever the owner looking on quietly suffers to be enjoyed by strangers for ten years, though he is present, that cannot be recovered by him. If he is neither an idiot nor a minor, and the enjoyment takes place before his eyes, his right to it is extinct by law, and the possessor is allowed to keep it.’

Bṛhaspati (9.7, 9, 10). — ‘He, whose possession has been continuous from the time of occupation, and has never been interrupted for a period of thirty years, cannot he deprived of such property. He who does not raise a protest when a stranger is giving away his landed property in his sight, cannot again recover that estate, even though he he possessed of a written title to it. Possession held by three generations produces ownership for strangers, no doubt, when they are related to one another in the degree of a Sapiṇḍa: it does not stand good in the case of Sakulyas.’

Vyāsa (Aparārka, p. 632). — ‘If the landed property of a man has been enjoyed by others for twenty years, his ownership to it is not restored.’

VERSE 8.148

Section XXVI - Pledges (ādhi)

अजडश्चेदपोगण्डो विषये चास्य भुज्यते ।
भग्नं तद् व्यवहारेण भोक्ता तद् द्रव्यमर्हति ॥१४८॥

ajaḍaścedapogaṇḍo viṣaye cāsya bhujyate |
bhagnaṃ tad vyavahāreṇa bhoktā tad dravyamarhati ||148||

If the owner is neither an idiot nor a minor, and the property is used in his own country, — it becomes frustrated in law, and the user becomes entitled to the property. — (148)

Medhātithi’s commentary (manubhāṣya):

This verso is supplementary to what has been said (in the preceding verse) regarding the man not deserving to recover the property — ‘if he is neither an idiot nor a minor.’ One who is devoid of intelligence is called as ‘idiot;’ and one who is still a child is a‘minor;’ one who has not reached his sixteenth year is called a ‘minor.’

What is mentioned here is only by way of illustration, standing, as it docs, for those conditions that make one unable to protect his own interests; such conditions for instance, as disability due to wine or gambling, protracted illness, being taken up entirely by austerities and study, want of business-capacity, deafness.

In the case of the property of persons suffering from such disabilities, even prolonged using does not create ownership in the person using it.

‘Is used in his country’. — The term ‘his’ refers to the actual owner. The ‘country’ of the Kaśmiri people is Kaśmir, that of the inhabitant of Pañcāla is Pañcāla. The sense is that — ‘if both the owner and the user are inhabitants of the same country.’

What is meant is that the rule laid down applies to the case of persons suffering from a disability; all the rest are mere details in the explanation; as it has been already pointed out that the mention of the ‘idiot’ and the ‘minor’ is merely indicative. Hence the sense is that — ‘in cases where it is possible for the owner to know that his property is being enjoyed by another, if the latter continues to enjoy it for ten years, then he becomes entitled to it, — i.e., the ownership passes over to him.’

Objection. — (A) “It is not right that enjoyment or possession should lead to ownership; on the contrary, it is ownership that leads to possession. If possession were to lead to ownership, there would be confusion. (B) further, as regards the limit of tea years that has been set forth, other Smṛti-texts do not admit this in the case of all kinds of property. For instance — ‘in the case of landed property ownership ceases after twenty years, if the owner sees it being enjoyed and says nothing’ — says Yājñavalkya (Vyavahāra, 24). Others again do not admit the passing away of ownership even after twenty years of adverse possession. They say — ‘If one enjoys, without title, a property even for hundreds of years, he should be punished by the king with the penalty due to thieves’ (Nārada, 87); — and again, ‘Where possession is found, but no title for it, the rule is that it is the title, and not the possession, that should form the ground of ownership.’ (Nārada, 84).”

Those who hold to the view of possession for three generations (leading to the passing over of ownership) quote the following text — ‘Even in the absence of title, if a property has been in total possession for three generations, it cannot be recovered, having passed from one generation to another for three generations’ (Nārada, 91). And the meaning of this is as follows: — ‘Authority’ means a deed of gift or some such document; — in the absence of such proof, what has been enjoyed by the father, grandfather, and great-grandfather, becomes the property of the fourth generation; and it is not so after twenty years only. Elsewhere again we read —

‘The best authority consists in a gift-deed, possession accompanied by title is the second, and possession is the last, — in connection with immovable property.’ Now, it is in the case of the third generation — and not in that of father and grandfather only — that ownership would be established by possession only: — but in his case also it is not possession during twenty years only. Others again hold that mere possession — even though extending over a hundred years — cannot be regarded as a ground for ownership; and in support of this they quote the following texts: — (a) ‘If a person enjoys a property without title, — even for hundreds of years, he should be punished with the penalty of a thief’ (Nārada, 87); (b) ‘If one man puts forward only possession, and no title, he should be regarded as a thief’ (Nārada, 86); (c) “The law is that it is authority, and not possession, that forms the ground of ownership’ (Nārada, 84). What has been referred to above in regard to possession extending over ‘hundreds of years’ (not being a right ground), is long-extending possession by one and the same person; and such possession cannot establish one’s ownership, unless there has been possession by his father and grandfather also.

“But how can one person possess a property for hundreds of years?”

There is no force in this objection. Such expressions as ‘hundred years,’ ‘thousand years’ and the like are used only in the sense of long periods of time; e.g., in such statements — ‘The man lives for a hundred years, of hundred glories and hundred organs.’

The upshot of all this is that in the case of the first generation of the possessor, mere possession, even though extending over a period of twenty years or more, does not establish ownership, — which means that the son of such a possessor also does not acquire the ownership; and thus the meaning of the texts is just as is directly signified by their words.

As a matter of fact, it is not possible for the ‘Title’ of possession to be remembered for ‘several hundred years’: so that if the production of such title were insisted upon, kings would come to confiscate all those properties that may have belonged of yore to temples, Brāhmaṇas, monasteries and village-communities. As for written land-grants, these also could not have their writings verified and recognised, after the lapse of a long time, as actually written by the king’s scribes; and the grants themselves might be suspected to be forged. Hence long-standing possession is regarded as indicative of the presence of valid title in the shape of a gift-deed and the like, and it is for this reason that possession has been mentioned among ‘proofs’ in the text — ‘There are three grounds of ownership — documentary evidence, witnesses and possession’ (Nārada, 69), — and not as a ‘ground of ownership,’ which are mentioned in the text — ‘There are seven marks of acquiring property’ (Manu, 10.115), and also in the text — ‘Learning, Bravery, Austerity, Daughter, etc., etc.’

Or the assertion of Nārada — ‘If a man enjoys a property without authority, etc.’ — may be taken as referring to a case where there is suspicion of forcible possession; as in the same context we find the text — ’ (1) Misrepresented Deposits, (2) Stolen goods, (3) Deposits, (4) Goods retained forcibly, (5) What is obtained by begging, and (6) What is possessed secretly, — these six are property possessed without title’ (Nārada, 92).

“But this has been already declared in another text: —

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