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‘Deposits, Boundaries, etc.’ (Manu, 8.159, and Nārada, 8).” What these latter texts refer to is possession during three generations only, and the text under consideration precludes the propriety of possession beyond that also; as is clearly indicated by the phrase ‘for several hundred years.’

In the text under consideration, ‘anvāhitam,’ ‘Misrepresented Deposits,’ stands for an article which is actutally pledged in a form different from that in which it was shown at the time of the transaction; — ‘stolen goods’ for what is obtained by fraud or by breaking through a wall at night, and so forth; while ‘forcible retention’ implies the use of force; this is the difference between the two; — the rest is quite clear.

“If it is only possession for three generations that is a ground for title, what then is the meaning of the text — ‘One loses his ownership over land, if he sees it being enjoyed by another, without saying anything’ (Yājñavalkya, Vyavahāra, 24).”

Some people offer the following explanation: — The text refers to the case where the man has been in possession of a property for some time, and a documentary flaw, or some such vitiating element, happens to be detected, — e.g., it is found that it was executed under pressure, or some letters are found to have been rubbed out, and so forth; — as ‘twenty years’ is ample time for the ascertaining of the exact nature of the suspicious document.

Others however explain it as referring to the case where the man offers the same plot of land as pledge to one person, after having previously pledged it to another, — and the title of the one is prior to that of the other; and what is meant is that in such a case, notwithstanding the priority of the title, greater validity attaches to the ‘possession’ by the other person, if it has continued for twenty years.

This however is not right; for it has been declared that, when a person hits accepted a pledge, it means that it has been accepted as ‘deposit’; and in the case of land, this acceptance implies a desire for possession; so that in a case like this, the character of the ‘pledge’ becomes established by possession during a short time also. It is with reference to such cases that we have the declaration — ‘What a man is not possessed of, that is not his own; even though there be documentary proof and witnesses Ire living; specially in the case of immovables’ (Nārada, 77). The term ‘specially’ implies that in the case of cows, horses, etc., there is ownership even without ‘possession’ or ‘use’; as these latter are not always used; and one does not always know what benefits he may derive from such pledges as these latter. In the case of land on the other hand, it yields its produce at all times; and hence in the absence of actual ‘use’ or ‘possession,’ the fact of its having been ‘pledged’ cannot be established.

If the pledger ignores the fact of his having pledged the land to one person, and offers it to another, even during the period of its possession by the first pledgee, — and the second pledgee also has accepted it, — while the former pledgee, either through the distraction of other business or on account of the distance of the place, has failed to ‘accept’ and take possession of it, — in such a case the circumstances do not deprive the first pledgee of his right over the land. When, however, immediately after having received the deposit, the man Is banished by the king, or is attacked by serious illness, and there is no authorised person to look after his property, — if the man returns after a long time, if he can prove his clear title to it, he does obtain possession of the land, even though in the meantime it may have been pledged to another person.

Others explain the text as referring to the subject of the revision and equalising of the shares of brothers, who have separated and divided their property in unequal shares (twenty years ago); the meaning being that there can be no such revision after twenty years.

But if this were all that is meant, this should have occurred under the context dealing with that subject. In fact, a general statement, made apart from a particular context, indicates that it pertains to other subjects also.

Others again take it as referring to the case of ‘possession’ where an uncultivated plot of land has been cultivated by a man; and they declare that in this case if the possession has continued for twenty years, and its exact extent has not been checked by means of chains and surveying instruments, — then all this checking cannot he done after the lapse of that time.

The revered teachers however explain as follows: — When two men, inhabitants of the same place, possessing similar powers, similar natures, equal wealth, — not related to one another, — happen to have the same interest in a certain immovable property, — if one of them permits the other to enjoy it during the said time (twenty years), the former retains no right over the property.

This however would be incompatible with the rule laying down the period as ‘three generations.’

Thus then, in as much as the various rules bearing upon the subject are found to be incompatible with one another, — which incompatibility cannot be set aside by any assumptions, — what has got to be ascertained in each case is if there is any clear title to ownership, — and in the event of there being none, if the property is in the possession of another party; if it is, then the decision must proceed on the basis of such possession only.

Though there are several kinds of titles to ownership, — such as gift, sale, pledge and so forth, — yet in the event of none of these titles being present, if it is shown that there has been possession extending over twenty years, without break, the right course is to regard it as a case of ‘pledge.’ Such ownership based upon possession is ephemeral, and can be set aside if there is deterioration in the property concerned. (?) Thus it is that possession during three generations creates the rights of ownership in all cases; possibility of gift or sale, etc., also there could be only for one year. So that in the case of possession for twenty years, there is no incongruity at all.

In a case however where both persons are absolutely without title, and are asserting themselves by mere force, — the prior possession, even though of longer standing, is set aside by the twenty years’ possession, which is more recent and hence free from all suspicion. That is to say, possession during three generations is set aside in favour of possession, the exact period of whose duration is precisely ascertainable.

‘Becomes frustrated in law’; — the phrase ‘in law’ is added in order to preclude the notion of its being ‘morally right.’ For if some flaw in the possession were detected, the possession could be defeated; so that if the possessor bases his case entirely upon the circumstance that there is no evidence forthcoming to show that his possession is fraudulent, — his victory cannot be regarded as morally right; so the fact remains that the other party loses his case simply on account of the said possession. — (148)

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 632), which adds that, if the user of the property knows that it rightfully belongs to another, then, even though he may have acquired ownership by legal usage ( vyavahārēṇa), yet he should hand it over to the rightful owner; — in Smṛtisāroddhāra (p. 334); — in Smṛticandrikā (Vyavahāra, p. 15b); — and in Vīramitrodaya (Vyavahāra, 66a).

Comparative notes by various authors:

(verses 8.147-148)

See Comparative notes for Verse 8.147.

VERSE 8.149

Section XXVI - Pledges (ādhi)

आधिः सीमा बालधनं निक्षेपोपनिधिः स्त्रियः ।
राजस्वं श्रोत्रियस्वं च न भोगेन प्रणश्यति ॥१४९॥

ādhiḥ sīmā bāladhanaṃ nikṣepopanidhiḥ striyaḥ |
rājasvaṃ śrotriyasvaṃ ca na bhogena praṇaśyati ||149||

A pledge, a boundary, minor’s property, a deposit, a property enjoyed by favour, women, king’s property, and the property of a vedic scholar are not lost by adverse possession. — (149)

Medhātithi’s commentary (manubhāṣya):

‘Ādhi’ is that which is pledged; an article given as pledge, — such as cattle, land, gold and so forth, — to the creditor; and recovered from him (upon re-payment of the debt).

‘Upanidhi’ has been explained, — in accordance with another treatise (Yājñavalkya, 2.65) as a deposit, whose form is not shown and which is handed over, covered with cloth and sealed. But this being already included under ‘deposit,’ it is better to take the term ‘upanidhi’ as standing for what is given for use, through friendliness and favour.

‘Boundary’ — the boundary-line between villages, etc. It is quite possible that it being a public concern, men are likely to ignore encroachments upon it. In the case of houses, the boundary-line, marked by ditches or walls, two, three or four cubits in size, is common to both; and if either side of it happens to crumble down in time, as the matter would be a slight one, even encroachment might be ignored for some time by a certain person. But since in such matters also the owner fearing the loss of ownership through gift, etc., his sons or grandsons do discover some hidden marks of the original boundary and assert their claims to the recovery of the boundary encroached upon.

‘Minor’s property’; — this has been added only by way of illustration; the minor having been already referred to by the name ‘pogaṇḍa’ (in Verse 148).

‘Women,’ — slave-girls or wife; as no other woman, save these two, have anywhere been described as ‘property,’ ownership over which could be lost through possession extending over ten years, as spoken of in Verse 147.

Objection. — “But the text (147) does not speak of ‘property’ at all; the expression used is ‘whatever thing,’ which refers to things in general.”

No; the use of the term ‘dhani,’ ‘owner,’ clearly indicates that the expression ‘whatever thing’ refers to property, which, in this case, is used in the sense of anything that is used; and this mention of women as ‘property’ indicates all kinds of possessions. From this analogy of ‘property,’ males also, as slaves, are actually regarded as ‘property.’

‘The king’s propety;’ — the ‘kings’ meant here are the rulers of provinces; the property belonging to such rulers. These people have vast properties, which they cannot always watch over carefully; so that if their property were liable to be lost through adverse possession, they would soon be reduced to penury.

‘The properly of Vedic Scholars’ — though poor in comparison, — has yet got to be preserved with care. — (149)

Explanatory notes by Ganganath Jha:

‘Śāstrāntareṇa’ — (Medhātithi, p. 965, l. 1) — This refers to Yājñavalkya, 2.65. ‘Vāsanasthamanākhyāya haste nyasya yadarpayet’; and Nārada — ‘asaṅkhyātamavijñātam samudram yannidhīyate.’

This verse is quoted in Parāśaramādhava (Vyavahāra, p. 109), which adds that the term ‘śrotriya’ includes also all such persons who have their attention too much taken up by other things to allow their looking after their belongings in Smṛticandrikā (Vyavahāra, p. 158), which notes the following reasons for neglect — (a) In regard to boundaries, people are apt to be lulled into security by the ease with which the boundary-line can be determined, — (b) in regard to women, their natural shyness lulls men into security, — (c) in the case of the king and the scholar, their minds are too much taken up with their temporal and spiritual concerns respectively; — and in Vīramitrodaya, (Vyavahāra, 69b).

Comparative notes by various authors:

Śukranīti (4.5.445). — ‘The following property cannot be destroyed by length of adverse, possession: — pledge, boundary-land, minor’s property, trust property, sealed deposit, female slaves, government property and the property of Vedic Scholars.’

Nārada (1.81). — ‘A pledge, a boundary, property of a child, an open deposit, a sealed deposit, women, what belongs to the King, or to the Vedic Scholar — none of these is lost by adverse possession.’

Bṛhaspati (9.13, 14). — ‘Forcible means should not be resorted to by the present occupant, or his son, in maintaining possession of the property of an infant, or of a learned Brāhmaṇa, or the property inherited from one’s father; — nor of cattle, a woman, a slave, or other property.’

Vaśiṣṭha (16.18). — ‘They quote the following: — “A pledge, a boundary, the property of minors, an open deposit, a sealed deposit, women, king’s property and property of the Vedic Scholar are not lost by being enjoyed by others.”

Gautama (12.39). — ‘Animals, land, and females are not lost by adverse possession.’

Yājñavalkya (2.25). — ‘A pledge, a boundary, deposit — : open and sealed, the property of infants, idiots, and of the King, and of women, and of the Vedic scholars; — with the exception of these, all property becomes lost to the owner by adverse possession extending over twenty years.’

VERSE 8.150

Section XXVI - Pledges (ādhi)

यः स्वामिनाऽननुज्ञातमाधिं भूङ्क्तेऽविचक्षणः ।
तेनार्धवृद्धिर्मोक्तव्या तस्य भोगस्य निष्कृतिः ॥१५०॥

yaḥ svāminā'nanujñātamādhiṃ bhūṅkte'vicakṣaṇaḥ |
tenārdhavṛddhirmoktavyā tasya bhogasya niṣkṛtiḥ ||150||

The fool, who, without the owner’s permission, uses a deposit, shall have to remit half the amount of the interest, as compensation for such use. — (150)

Medhātithi’s commentary (manubhāṣya):

It has been declared (under 144) — ‘a deposit should not be used by force, — by using it one renounces the interest:’ and what was meant there was the absolute appropriation of the entire deposit; and when such using has been forbidden, it is only right that by using a deposit by force, the man should lose the entire amount of his interest. By merely using the article however, the deposit does not become destroyed, it only becomes deteriorated, in colour, brightness and decorations; and the present verse lays down that in such cases the man shall lose half the amount of his interest.

In a case however, where the deposit consists of new and valuable ornaments or clothes, and on being worn they become spoilt, — there is to be not merely loss of interest, but the man is to be made to pay the price of the property spoilt; this is as the matter has been explained by great scholars.

Ṛju (Yajvan) (?) however has explained as follows: — In a case where business is carried on by the master as well as by the servant, and a pledge has been deposited by the servant, and seen by the master also, — if after some time, the pledger says to the servant — ‘I have need for the article pledged,’ — and is permitted by him to use it; whereupon, if the master, on seeing him using it, cancels the pledge and takes it back; — in such a case half the amount of interest has to be renounced.

This however is not right; as, under the circumstances, transactions carried on by the master or the servant stand upon the same footing. So that when the using has been permitted by one, it cannot be held to be not permitted by the other and hence illegal. In such a case, it is actual ‘ownership’ that forms the denotation of the term ‘owner.’ Otherwise, the person who deposits the article would certainly appear to be the ‘owner’; but the servant is not the ‘owner’; so that if he does give away the thing, he would be only a thief. For this reason ‘ownership’ has to be attributed to him. Hence when the using has been permitted by the servant, it is treated as permitted by the master also.

For these reasons, the meaning of the verse must ho as previously explained and the mention of the ‘owner’ is only for the purpose of filling up the metre.

Between the two terms in the expression — ‘Bhuṅktevicakṣaṇaḥ,’ an ‘a’ is to be understood as present in a merged form due to the proximity of the two vowels (e and a). That man who entertains the idea — ‘my interest is already safe, so that the use of the article is an additional gain’ — is called here a ‘fool’ For no such transaction is sanctioned by law as would involve both the securing of interest and the using of the pledged article; hence it is only the interest that should be earned.

‘Compensation’ — Expiatory price; exchange.

Others have explained the prohibition contained in the present verse as referring to the case where the pledge is not redeemed, even after the principal has been doubled; and they hold that the fault, in this case is comparatively insignificant (hence only half the interest is lost).

But first of all, these persons should be required to point out the subject of Yājñavalkya’s assertion (Vyavahāra-58) regarding the ‘pledge becoming lost if it is not redeemed on the principal having been doubled.’ — (150)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 23) [for whose explanatory note, see note on verse 144]; — in Aparārka (p. 659), which adds that what is here laid down applies to cases where very little use has been made of the thing; in cases where the pledged thing has been very much used, no interest is to be paid; thus the reduction in the interest has to be determined by the extent of the use to which the thing may have been put; — and in Kṛtyakalpataru, (70a).

Comparative notes by various authors:

Nārada (1.128). — ‘That foolish person who uses a pledge without the authority of the owner, shall lose one half of his interest, as a compensation for such use.’

[See Texts under 143-144.]

VERSE 8.151 [Limitation of Interest (kusīdavṛddhi)]

Section XXVII - Limitation of Interest (kusīdavṛddhi)

कुसीदवृद्धिर्द्वैगुण्यं नात्येति सकृदाहृता ।
धान्ये सदे लवे वाह्ये नातिक्रामति पञ्चताम् ॥१५१॥

kusīdavṛddhirdvaiguṇyaṃ nātyeti sakṛdāhṛtā |
dhānye sade lave vāhye nātikrāmati pañcatām ||151||

Interest on money-loans stipulated at one time shall not exceed the double; in the case of grains, fruits, wool and beasts of burden, it shall not go beyond the quintuple. — (151)

Medhātithi’s commentary (manubhāṣya):

‘Kusīda,’ ‘monetary loans’ — the advancing of money for earning interest; or the money advanced may itself be called ‘Kusīda’; i.e., the money which is advanced with the idea ‘having advanced a small amount I shall get back a larger amount.’

The interest on such loans ‘shall not exceed the double — the creditor, having advanced the money to the debtor, shall receive from him only such an amount as may be the double of his principal.

“What the text says is that the interest should become ‘Double’; and this, along with the principal itself, should make the total amount received thrice the principal.”

It is not so; in the term ‘Dviguṇa,’ ‘double,’ the term ‘guṇa’ signifies part; and when we come to look out for a whole of which it would be the ‘part,’ it is the principal which, from the context, appears to us as the ‘whole.’ Hence when the text speaks of the ‘double,’ what is meant is the double of the capital advanced. To this end we have other Smṛti-texts — (a) ‘When there is delay, the capital advanced shall become doubled’ (Gautama, 12. 81); and (b) ‘The deposit is to be redeemed when the principal has become doubled’ (Yājñavalkya, Vyavahāra, 64).

‘Interest’ is paid in several forms: — (1) when coins are advanced, interest is paid in coins; (2) sometimes it is paid in the form of progeny; as in the case of female cattle; (3) sometimes in the form of the use of pledges, in the shape of cattle, land and the like.

The doubling of the interest is, according to some people, meant to pertain to those cases where the interest paid is of the same kind as the capital advanced; and the reason for this lies in the fact that it is only in such cases that the exact ‘double’ can be ascertained; while in the case of interest in the form of ‘progeny’ of animals, it cannot be ascertained whether the ‘doubling’ is to be computed by number, or size or measure; as in the case of such animals as elephants and horses, it is found that when they are bought or sold, their price depends upon their size; as a rule animals of larger size fetching higher prices.

“There is similarity of kind in the progeny also; the progeny of the cow is of the same species as the cow. So that there is no justification for any distinction as that into (a) ‘interest of the same kind’ and (b) ‘progeny.’”

The answer to this is as follows: — ‘Sameness of kind’ does not depend only upon belonging to the same species; in fact it depends upon similarity of age, size and other factors. Hence the distinction is quite correct. Further, in the case of interest in the form of the use of deposits also, how would the ‘double’ be determined? And when cows and lands are pledged, the benefit derived from the use of the cow is in the form of milk, while in the case of land, it is in the form of fodder and other produce; so that in these cases also what sort of ‘double’ would there be? In actual usage it is found that if the principal gold is not paid, land continues to be used and enjoyed for hundreds of years. Says Yāyñavalkya (Vyavahāra, 90) — ‘The pledge continues to be enjoyed so long as the capital is not paid off.’ [From all this it is dear that the limit of ‘double’ cannot he applicable to all cases.]

Our answer to this explanation of some people is as follows: — When what is asserted is the ‘doubling’ in regard to ‘interest’ in general, how can we restrict it to any particular kind of interest only? When the words of the text afford a certain meaning in a general form, we cannot restrict it to any particular case, unless there is some authority for doing it. As regards the argument that “there can be no doubling,’ in the case of progeny,” — ju st please make an effort to understand the matter: when an animal is pledged, its value is duly determined, and certainly the value of its progeny also could be similarly determined. Similarly in the case of the enjoyment of landed property also, when the fodder and grains become ripened, it can he easily determined when their value becomes equivalent to the principal.

Then again, the term ‘Guṇa’ (contained in ‘dviguṇa,’ ‘double’) signifies usefulness also. “in that case what is there that would be as useful as the principal?” It can always be found if a certain thing serves any useful purpose at all. And if the interest accruing he computed only at the price obtained from the sale of the grain and fodder produced from the land, — then also it would be possible for the interest to become equivalent to the principal, — even though there may be no exact equality of size and other details.

As for the ‘local custom’ that you have put forward, — that argument has been answered by yourself, when you called it ‘local.’ further, whenever there is any chance of customs being abandoned, it is Smṛti-texts that serve the useful purpose of affording the requisite check.

As regards the text — ‘the pledge is enjoyed so long as the principal is not paid up,’ — the phrase ‘so long as the principal is not paid up’ can he taken to mean ‘so long as it has not become doubled.’ In fact, with a view to reconciling it with other Smṛti-texts, it is best to take it in this sense. This has been fully explained by us elsewhere.

‘Stipulated at one time’ — i.e., what has been fixed upon at one time, in eases of the renewal of the loan. ‘Stipulating’ means fixing; and what is settling by verbal contract is also fixing. The loan is renewed, when the principal has become doubled and is not paid up. Even after the principal has been doubled, if the creditor is willing to earn further interest on it, and the debtor also wishes to retain the money for the purpose of currying on some large business, he renews the deed, entering as principal, the former principal along with the accrued interest, and thenceforward it is on this principal that the interest begins to accrue. And in that case, the principal, even though doubled, continues to grow further.

It continues to grow also when transferred to another person; for instance, when the principal has become doubled and the creditor has need of the money and asks the debtor to pay, the latter takes him to a third party, and says‘this man will make the payment for me in so many days’; and in this case during these additional days, further interest shall accrue. The third party in this case is not a ‘surety’ for payment, but only a ‘trustee,’ the man who actually does the payment. This is what has been explained by Ṛju to be the meaning of the debt being ‘transferred to another person.’

Or. ‘transference to another person’ may refer to the following transaction: — Even before the principal has become actually doubled, if the pledge is banded over to another person, — when the money with accrued interest has become doubled, then it is only right and proper that the pledge should be redeemed; but in this case it is taken away before the principal has reached the limit, — then, interest begins to accrue from that date, and the limit of ‘double’ shall be computed upon the total amount of the principal along with the interest accrued up to the date of the transference. That is, when the creditor, with the sanction of the debtor, hands over the latter’s pledge to a third party and receives his due from him, then the interest continues to accrue.

In both these cases (of ‘transference to another person’), before the doubling of the principal, the money-lender is, somehow or other, made to agree to receive payment from another person; or, ‘transference to another person’ may mean that case where the debtor takes a further loan from the creditor, but having to go away to foreign lands, transfers the loan by means of another document.

Ṛju however holds that, except in the case of the same debtor renewing the loan, no interest beyond the doubling of the principal can accrue. It is in accordance with this view that he has declared — ‘In the case of transference to another person, there should be renewal of the deed, and the need for this we shall explain.’

Some people have held the following view: — “The rule laid down in the present text refers to a case where the whole amount of interest accruing during the year is paid at one time [this being the meaning of the phrase ‘sakṛdāhiṭā ]; whereas if all the interest that has fallen due is not paid off wholly, then it will go on accruing, even beyond the limit of ‘double the principal.’”

But in this explanation, neither the negative particle ‘na’ nor the term ‘āhita’ retains its real meaning. For if the interest accrued during the first year has been received, and at the end of the second year, the interest is again brought up for payment, — where would there be any chance of the principal becoming doubled?

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