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yo yathā nikṣipedd haste yamarthaṃ yasya mānavaḥ |
sa tathaiva grahītavyo yathā dāyastathā grahaḥ ||180||

In the form in which one shall deposit a thing in the hands of another person, in that same form shall that thing be received back; as the delivery so the recovery. — (180)

Medhātithi’s commentary (manubhāṣya):

‘Yathā,’ — in the form; i.e., sealed or unsealed, with witnesses or without witnesses and so forth.

‘In that same form’ should the thing be received back; the thing should be recovered in the same form in which it had been delivered.

In a case where it is generally known that the party concerned always keeps deposits properly sealed, — if a dispute arises, and the deposit is found to be unsealed, if the trustee were to say ‘this man never seals his deposits, he forces them upon me and goes off,’ he would be suspected of dishonesty and would lose his case; there being no room for any other evidence so far; — but when, on the seal being found broken, the question arises as to what part of the property has been extracted, the king should call other kinds of evidence; the guilty man however is to be punished in the first place, with the penalty prescribed for dishonest dealing in general; — and secondly, another penalty in connection with the ‘deposit’ has to be imposed after the exact amount extracted has been determined.

“in the case of a dishonest dealing, the man deserves to be mulcted of the entire amount involved.”

True; but this is so only in cases where the entire guilt is clearly indicated by proofs. For instance, a certain village has been robbed, Devadatta is accused of having colluded with other thieves and robbed the village on that day, — thereupon he pleads — ‘on that day I did not go to that village,’ — witnesses declare that he had been seen in the village on that day, but it had not been seen that he had actually committed the robbery, — from this the deduction is that the man having denied the robbery as well as his presence in the village, since his presence had been proved, the denial of the robbery also was not true; so that when there was other evidence clearly proving the man’s presence in the village, it was safe to infer that he had committed the robbery also.

In the present case however, it may he that the seal was broken through carelessness (and not necessarily intentionally), (so that the penalty need not always be severe).

‘As the delivery so the recovery,’ — i.e., what was delivered ‘sealed’ should be received back also ‘sealed.’

Fraudulent denial may be made by a man who might think that there would be no occasion for his being hauled up. The presence of such fraudulent intention may be inferred; but the exact amount involved cannot be determined entirely on the assertion of the depositor, except through other kinds of evidence. So in such cases the right course would be to arrive at a decision with the help of ordeals. And (as for the actual award), it is only where no certainty is possible in regard to the entire claim that a partial decree is awarded. — (180)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 86), which explains ‘dāyaḥ’ as depositing and ‘grahaḥ’ as receiving; — in Parāśaramādhava (Vyavahāra, p. 205), which explains ‘dāyaḥ’ as giving, depositing, — and ‘grahaḥ’ as receiving; — and in Vīramitrodaya (Vyavahāra, 113b).

Comparative notes by various authors:

Yājñavalkaya (2.65, 67). — ‘If something contained in a basket is made over in deposit to another person, without the contents being declared, it is called a Scaled Deposit; it shall be restored to the owner in exactly the same form in which it had ben deposited. This same rule applies to ordinary deposits also.’

Nārada (2.3). — ‘In whatever form may a man have delivered any of his effects to another, in the same form shall that article be restored to the owner; as the delivery so the recovery.’

Nārada (2.5). — ‘If one article concealed in another is deposited in another man’s house, without stating what it is, it is then a Sealed Deposit.’

Nārada (2.6). — ‘Deposits must he restored in precisely the same condition.’

Bṛhaspati (12.3). — ‘When a chattel enclosed in a cover and marked with a seal is deposited, without describing its nature and quantity, and without showing it, it is termed a Sealed Deposit.’

Bṛhaspati (12.9). — ‘A deposit must be returned to the very man who hailed it, in the very manner in which it was hailed.’

Kātyāyana (Aparārka, p. 662). — ‘Purchase-money, what is deposited by one going on a long journey, a pledge, something handed over for being delivered to a third party, what is given to another for the making of something else, what is paid in connection with loan-transactions, all this is called Deposit.’

VERSE 8.181-182

Section XXXII - Deposits (nikṣepa)

यो निक्षेपं याच्यमानो निक्षेप्तुर्न प्रयच्छति ।
स याच्यः प्राड्विवाकेन तत्निक्षेप्तुरसंनिधौ ॥१८१॥

साक्ष्यभावे प्रणिधिभिर्वयोरूपसमन्वितैः ।
अपदेशैश्च संन्यस्य हिरण्यं तस्य तत्त्वतः ॥१८२॥

yo nikṣepaṃ yācyamāno nikṣepturna prayacchati |
sa yācyaḥ prāḍvivākena tatnikṣepturasaṃnidhau ||181||

sākṣyabhāve praṇidhibhirvayorūpasamanvitaiḥ |
apadeśaiśca saṃnyasya hiraṇyaṃ tasya tattvataḥ ||182||

When requested to restore the deposit, if the trustee do not restore it to the depositor, — then, on the departure of that depositor, in the event of there being no witnesses, the judge shall actually deposit gold (with the trustee) through spies of proper age and appearance, under some pretexts, and then ask him to restore it. — (181-182)

Medhātithi’s commentary (manubhāṣya):

(verses 8.181-182)

From what has gone before people might be led to think that in a case where there are no witnesses, recourse should at once be had to ordeals; — and it is to guard against this that the author adds these texts.

The meaning is that in the case of non-payment of debt and other disputes, the judge has recourse to ordeals as soon as it is found that no witnesses are available; — but this is not what should be done in the case in question; in such cases the character of the man is tested through spies. If, on being so tested, it is found that the man does not trip in his dealings, then he shall not be disgraced With having to undergo an ordeal. If, on the other hand, he does trip, then it is only right that he should be suspected of having misappropriated the deposit; and in this case he should be made to undergo ordeals; because the mere fact of his having misappropriated one deposit does not necessarily prove that he had misappropriated another deposit also; for it is just possible

that on account of some urgent need he might have been led to commit misappropriation in one case, while in another ease, either by reason of his needs having been supplied or on account of repentance, he might have restored it honestly.

The present verses are to be taken as forbidding the course of hurriedly making the trustee undergo ordeals; and they are meant to point out a new line of evidence. Then again even though in the case of the man misappropriating the judge’s deposit, there is immediate punishment, yet it does not follow that the same punishment shall be inflicted upon him in connection with the alleged, but uncertain, misappropriation of that belonging to the plaintiff. For if such penalty were to be inflicted even in cases of uncertainty, there would be no laws laying down the means of arriving at certain conclusions. Hence it has been considered necessary that decisions should be arrived at by means of reasonings.

For these reasons verse 181 should not be taken in its literal sense (that the man shall be made to pay ‘yācyaḥ’); but it should be interpreted in a different manner, being construed along with verse 182.

The verbal construction of the verse we explain now as follows: — ‘on the departure of that depositor’ — by whom the deposit had been placed, — ‘he shall be asked by the judge to restore it.’

There being no witnesses, — when the depositor asks for the restoration of his deposit and the trustee denies the deposit, saying ‘you never deposited anything with me’ — and being appealed to by the depositor, the king shall not at once put the trustee to the ordeal; — what then shall he do? — The judge shall deposit his own or some one else’s gold or silver with the man, through spies, and then ask for its restoration.

The term ‘judge,’ here stands for any person who has been deputed by the king to investigate the ease.

“Is he to be asked directly by the Judge himself?”

No; it should be done through spies, — those same through whom the deposit has been placed.

‘Of propet age and appearance’; — they should he of ‘proper age,’ so that they may not be minors; for if such minors were to go to transact business, the man would suspect that they had been put up by others to cheat him; whereas if they were full-grown people, no such suspicion would arise.

Similarly they should be of ‘proper appearance’; — in the case of some people their very appearance is indicative of their fickle nature; that appearance is to be regarded as ‘proper’ which indicates freedom from love or hatred.

Thus the meaning comes to be that the spies chosen should be such that the trustee may not suspect that the whole business was a trick to entrap him.

‘Under some pretexts.’ — That is, they may say, for instance, — ‘The man who is depositing this good is leaving the city from fear of harrassment by the king, that is why I am placing this deposit with you.’ This untrue representation is what is called ‘pretext’ here.

All this is to be done, when the original depositor (the original plaintiff) is not present. — (182)

Explanatory notes by Ganganath Jha:

(verses 8.181-182)

These verses are quoted in Aparārka (p. 664); — and in Vivādaratnākara (p. 94), which explains them to mean that — ‘If the person who calls himself the Depositor demands the deposit from the person called the Deposit-holder, — and the latter denies it, saying ‘nothing was deposited with me’, — and there are no witnesses to the transaction; — then the king, with a desire to ascertain the facts, should have recourse to the following stratagem: — Through spies of the proper age and appearance, trustworthy in word and appearance, he should by some pretext deposit his own gold with the accusal person; — after some days, he should have that deposit demanded from him.

Comparative notes by various authors:

(verses 8.181-184)

Nārada (2.4, 7). — ‘If the depositary fails to restore the deposit to the depositor as he ought, he shall be compelled by forcible means, to restore it, after his guilt has been proved by ordeals or other modes of proof. The wicked man who does not restore a deposit, on being asked to do so by the depositor, shall be punished by the King. If the deposit has been lost, he shall make good its value.’

Bṛhaspati (12.13). — ‘He who, after receiving a deposit, denies the fact, and is convicted by the evidence of witnesses or ordeal, shall be compelled to give up the deposit and to pay a fine equal in amount to the same.’

Yājñavalkya (2.66). — ‘If on the depositor demanding it, the deposit be not restored, on account of its having been lost, the depositary should be made to pay to the depositor the value of the deposit, and also a fine of the same amount.’

Kātyāyana (Aparārka, p. 664). — ‘If after having received a deposit, one fails to restore it on being asked to do so, he should he punished and compelled to restore it.’

Matsyapurāṇa (Aparārka, p. 664). — ‘If after having received a deposit, the depositor refuses to restore it and dishonestly denies the deposit, he should be arrested and compelled to restore the deposit and also pay a fine.’

VERSE 8.183

Section XXXII - Deposits (nikṣepa)

स यदि प्रतिपद्येत यथान्यस्तं यथाकृतम् ।
न तत्र विद्यते किं चिद् यत् परैरभियुज्यते ॥१८३॥

sa yadi pratipadyeta yathānyastaṃ yathākṛtam |
na tatra vidyate kiṃ cid yat parairabhiyujyate ||183||

If he admits the deposit exactly in the form and shape in which it was entrusted, — then there is nothing in the charge brought against him by others. — (183)

Medhātithi’s commentary (manubhāṣya):

The man having been charged with the words — ‘This man is refusing to restore my deposit, because there are no witnesses to it,’ — if he admits it ‘in the form and shape,’ etc. — The distinction between ‘form and shape’ is based upon the deposit hearing or not bearing a secret seal; — or it may he based upon the action of the Receiver and the Depositor.

The deposit should be restored as unhesitatingly and quickly as it had been received; — that is, there should be no delay in the restoration. — (183)

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 664); — and in Vivādaratnākara (p. 94), which continues the explanation (see last note) — ‘If the man admit the deposit and surrender it exactly in the condition in which it had been deposited — neither more nor less, — then the king should conclude that the former deposit, the subject-matter of the dispute, had not been made over to him, and he should be acquitted of the charge brought against him by the other party’.

Comparative notes by various authors:

(verses 8.181-184)

See Comparative notes for Verse 8.181-182.

VERSE 8.184

Section XXXII - Deposits (nikṣepa)

तेषां न दद्याद् यदि तु तद् हिरण्यं यथाविधि ।
उभौ निगृह्य दाप्यः स्यादिति धर्मस्य धारणा ॥१८४॥

teṣāṃ na dadyād yadi tu tad hiraṇyaṃ yathāvidhi |
ubhau nigṛhya dāpyaḥ syāditi dharmasya dhāraṇā ||184||

If, however, he should not restore that gold to them in the proper manner, he should be forced to restore both; such is the decree of the law. — (184)

Medhātithi’s commentary (manubhāṣya):

‘To them’ — i.e., to the depositors employed by the Judge; — if he should not restore ‘that gold’ — which was placed in deposit; — ‘in the proper manner,’ — this is exactly what has been spoken of in the preceding verse by the phrase ‘in the form in which it was entrusted’; — then ‘he’ — the Receiver — ‘shall be forced’ — by the officers of the King — ‘to restore both’ — the deposit of the plaintiff, as also that of the King.

‘Such is the decree’ — declaration — ‘of the law.’

What this means has already been explained. — (184)

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 664), which explains the meaning to be that the man should be punished by being made to surrender the two deposits as also their values.

It is quoted in Vivādaratnākara (p. 94) which explains the meaning to be as follows — “If, however, the man does not surrender the gold deposited by the king’s spies, then the king should regard the charge as proved against him and should make him surrender also the former deposit, the subject-matter of the former charge.”

It is quoted also in Parāśaramādhava (Vyavahāra, p. 209), to the effect that if, relying on his power, the depository does not surrender the deposit, he should be punished by the king and forced to deliver it.

Comparative notes by various authors:

(verses 8.181-184)

See Comparative notes for Verse 8.181-182.

VERSE 8.185

Section XXXII - Deposits (nikṣepa)

निक्षेपोपनिधी नित्यं न देयौ प्रत्यनन्तरे ।
नश्यतो विनिपाते तावनिपाते त्वनाशिनौ ॥१८५॥

nikṣepopanidhī nityaṃ na deyau pratyanantare |
naśyato vinipāte tāvanipāte tvanāśinau ||185||

Deposits, open and sealed, should never be handed over to the next-of-kin; in the event of a mishap occurring, they become lost; though they do not become lost, if no mishap occurs. — (185)

Medhātithi’s commentary (manubhāṣya):

‘Next-of-kin,’ — of the depositor; i.e., his son, or brother, or wife. If the depositor has the right of ownership, so has his wife also; the son also has a right over the property of his grandfather; and the brother also, who is still united in property, has a right over it. Hence, if the depositor happens to be sent, any one of these relatives may tell the depository — ‘give the deposit to me, it belongs to me’; — on this the depository may hand it over to him thinking — ‘this is their joint property, one has deposited it and another is taking it away, what harm is there in this?’ — and it is with a view to guard against this that the text says — ‘Deposits, open or sealed, shall not be handed over to the next-of-kin.’

A hortatory argument is added — ‘In the event of a mishap occurring, they become los t,’ — ‘mishap’ in the form of the kinsman going out of the country and so forth, — if any such happens ‘they become lost.’ If the kinsman, having received the deposit, did not make it over to the person who had deposited it, then, on being charged by the latter, what answer could the depositary give? It would be no answer to say — ‘it was taken away by your brother, who was the joint owner of it’; because it has been declared — ‘as the delivery so the recovery’ (180); so that the deposit should be restored to the person who actually deposited it, be he the rightful owner or not. This is the simple fact that is set forth in this detail.

If however nothing happens to the ‘next-of-kin’ then there would be no harm in restoring the deposit to him; this is what is meant by the assertion. — ‘They do not become lost, if no mishap occurs.’ Because in this case the answer of the depositary would be — ‘I restored it to him as otherwise it might become lost with me.’

What the text means is that — ‘if the deposit has been taken away by the depositor’s kinsman, then, on being asked by the depositor to restore it, the depositary shall make it good out of his own property.’ — (185)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 87), which adds the following explanation: — If the depositor is living, deposits, sealed or open, should never be given by the depository to any such near relative of the depositor as may have a share in the property, — during the absence of the depositor himself; for if the said relative happen to die, the deposits become lost, i.e., they do not reach the depositor himself; though if the relative does not die, they may perhaps reach him. So that in the event of the relative’s death, it would be open to the original depositor to demand from the depository the value of the deposits; and in order to guard against this, the depository should always return the deposits to the depositor himself, while he lives.

It is quoted in Kṛtyakalpataru (83a).

Comparative notes by various authors:

Bṛhaspati (12.9). — ‘A deposit must he restored to the very man who kept it, in the very manner in which it was delivered; it must not be restored to the next of kin (of the depositor).’

VERSE 8.186

Section XXXII - Deposits (nikṣepa)

स्वयमेव तु यौ दद्यान् मृतस्य प्रत्यनन्तरे ।
न स राज्ञाऽभियोक्तव्यो न निक्षेप्तुश्च बन्धुभिः ॥१८६॥

svayameva tu yau dadyān mṛtasya pratyanantare |
na sa rājñā'bhiyoktavyo na nikṣeptuśca bandhubhiḥ ||186||

If the man restores it himself to the next-of-kin of the deceased depositor, — he should not be harassed by the king, or by the depositor’s relatives. — (186)

Medhātithi’s commentary (manubhāṣya):

It has been just declared that while the depositor is still alive, the deposit shall not be handed over to his ‘next-of-kin.’ But when he is dead, if the depositary should himself restore the property to his heir, who does not know that it belongs to him, then he shall not be made to undergo the trouble of a law-suit and all that follows in its wake.

If there be a suspicion that there may he something more with the man, — on the ground that the deceased was a wealthy man and he did not keep his property with any other person, — then other kinds of evidence shall be considered, but the man shall not be harassed with oaths or ordeals with poison, etc.; though there would he nothing wrong in the employment of such test as the ‘ghaṭakośa,’ the ‘satyataṇḍula’ and so forth (which are not so humiliating).

The condition of ‘the absence of witnesses’ (mentioned in 182-183) should be taken as applicable here also. — (186)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 87), whieh adds the following explanation: — On the death of the depositor, if the depository deliver the deposit to the depositor’s heir, he should not be blamed either by the king or by the dead man’s relatives. The term ‘svayameva’ implies that during the depositor’s life-time, he should not deliver it to the heir, even though asked to do so by the latter; — and that on his death he should give it to the heir even without being asked to do so; — and in Vivādacintāmaṇi (p. 37).

Comparative notes by various authors:

Nārada (11.10). — ‘The depositor being dead, if the depositary restores the deposit to his next of kin of his own accord, he must not be harassed, either by the King or by the relations of the depositor.’

VERSE 8.187

Section XXXII - Deposits (nikṣepa)

अच्छलेनैव चान्विच्छेत् तमर्थं प्रीतिपूर्वकम् ।
विचार्य तस्य वा वृत्तं साम्नैव परिसाधयेत् ॥१८७॥

acchalenaiva cānvicchet tamarthaṃ prītipūrvakam |
vicārya tasya vā vṛttaṃ sāmnaiva parisādhayet ||187||

In doubtful cases he should try to obtain it without artifice and in a friendly manner; or having ascertained his character, he should settle the matter by gentle means. — (187)

Medhātithi’s commentary (manubhāṣya):

(This verse, as also the Bhāṣya on it is wanting in Mandalik, S, N and I. O.)

Explanatory notes by Ganganath Jha:

“According to Nārāyaṇa, the verse refers to cases where one believes a deposit to be with another but has not made it over himself; according to Govindarāja and Kullūka, to cases where there may be error. Govindarāja and Kullūka think that the person who should act in the manner described is the king, and they explain ‘anvicchet by ‘he should decide.’ Nārāyaṇa and Rāghavānanda, on the other hand, think that the depositor should act thus.” — Buhler.

This verse has been omitted entirely by Medhātithi; neither the verse nor its commentary is found in the Mss.

This verse is quoted in Vivādaratnākara (p. 94), according to which the verse refers to what the depositors should do; it means that ‘the depository should keep the deposit honestly and lovingly; all the more so if the depositor is found to be a man of thoroughly good character.’

It is also quoted in Parāśaramādhava (Vyavahāra, p. 209), which says that this lays down what should be done by the successor of the depositor, if the depository does not of his own accord, surrender the deposit, after the depositor’s death.

Comparative notes by various authors:

Bṛhaspati (12.14). — ‘When a dispute arises with regard to a deposit privately made, the performance of an ordeal is ordained for both parties, to establish the facts of the case.’

Nārada (2.11). — ‘The rightful owner shall try to recover the deposit amicably, without resorting to stratagems. Or, he shall explore the depositary’s mode of living and cause him to restore it by friendly expostulations.’

VERSE 8.188

Section XXXII - Deposits (nikṣepa)

निक्षेपेष्वेषु सर्वेषु विधिः स्यात् परिसाधने ।
समुद्रे नाप्नुयात् किं चिद् यदि तस्मान्न संहरेत् ॥१८८॥

nikṣepeṣveṣu sarveṣu vidhiḥ syāt parisādhane |
samudre nāpnuyāt kiṃ cid yadi tasmānna saṃharet ||188||

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