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Medhātithi’s commentary (manubhāṣya):

This verse sums up the section.

‘What is given as friendly loan’ — i.e., what is giv en, through friendship, for being used for some time.

The cases have to be decided in such a way as noṭ to cause injury to the keeper of the pledge or deposit. ‘Akṣiṇvan’ — without causing injury to.

In the whole of this section on ‘deposits’ only two or three verses are mandatory in their character, all the rest is purely commendatory, — mentioning things already known, in a friendly spirit. — (196)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 95), which adds the following notes: — ‘Akṣiṇvan,’ not harassing the person who is believed to have been the holder of the deposit; — and in Parāśaramādhava (Vyavahāra, p. 209), which explains ‘aprakṣiṇvan’ (which is its reading for ‘akṣiṇvan’), as ‘not chastising.’

VERSE 8.197 [Fraudulent Sale]

Section XXXIII - Fraudulent Sale

विक्रीणीते परस्य स्वं योऽस्वामी स्वाम्यसंमतः ।
न तं नयेत साक्ष्यं तु स्तेनमस्तेनमानिनम् ॥१९७॥

vikrīṇīte parasya svaṃ yo'svāmī svāmyasaṃmataḥ |
na taṃ nayeta sākṣyaṃ tu stenamastenamāninam ||197||

If a man sells another man’s property, without being its owner, and without the owner’s consent, the judge shall not admit him as a witness, — he being a thief; though he may not be regarded as a thief. — (197)

Medhātithi’s commentary (manubhāṣya):

The text now proceeds to deal with the head of dispute called ‘Sale without Ownership.’

The ‘property’ — articles — that belongs to another person, — if a person, who is not the owner — i.e., who is not the son or any such relative of the owner, — and who has not obtained the consent of the owner, — ‘sells,’ — him the judge shall regard as a ‘thief’; though the person who buys it from him may not regard him as a thief.

Him the judge ‘shall not admit as a witness,’ — shall not call him as a witness; because he is just like a thief; and being a thief, he is not fit for being called as a witness.

The present exclusion is meant to be, not only from being called as a witness, but from all such acts as are to be done by a gentleman.

When a property is sold by one who is not its owner, without the consent of the real owner, it does not become the property of the buyer; — this fact being already known, the forbidding of such a transaction by means of asserting that such a person is not fit for being called as a witness, is meant to be only a diversified way of saying things — (197)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 103), which explains the phrase ‘na tam nayet sākṣyam’ as ‘should place no confidence in him’; — in Nṛsiṃhaprasāda (Vyavahāra, 26b); — in Vivādacintāmaṇi (p. 41), which explains ‘sākṣyam’ as ‘trustworthy evidence’; — in Kṛtyakalpataru (85b), which explains ‘na tam nayet sākṣyam’ as ‘no trust is to be placed in him’ — and in Vīramitrodaya (Vyavahāra, 115b).

Comparative notes by various authors:

Nārada (7.1). — ‘When a property kept as deposit, or the property of a stranger lost by him and found by another, or a stolen article, — is sold in secret, it has to he considered as sale without ownership.’

Bṛhaspati (13.2). — ‘An open deposit, a bailment for delivery, a sealed deposit, stolen property, a pledge, or what has been borrowed for use; — when any one of these articles has been sold in secret by a man, he is declared to be one selling without ownership.’

Vyāsa (Vivādaratnākara, p. 100). — ‘An article borrowed for use, deposit sealed or open, or anything stolen from another, — if any of these is sold by a man, it is a case of sale without ownership.’

VERSE 8.198

Section XXXIII - Fraudulent Sale

अवहार्यो भवेत्चैव सान्वयः षट्शतं दमम् ।
निरन्वयोऽनपसरः प्राप्तः स्याच्चौरकिल्बिषम् ॥१९८॥

avahāryo bhavetcaiva sānvayaḥ ṣaṭśataṃ damam |
niranvayo'napasaraḥ prāptaḥ syāccaurakilbiṣam ||198||

If a relative, he shall be made to pay the penalty of six hundred; if he is not a relative, nor one having access to him, he shall incur the guilt of theft (specially). — (198)

Medhātithi’s commentary (manubhāṣya):

The preceding verse has declared that the man who sells the property of another person is not fit to be admitted to any transaction done by gentlemen, such as the giving of evidence and so forth; and the present verse prescribes for him the penalty of the fine of six hundred. He shall be made to pay — fined — six hundred coins.

‘If a relative,’ ‘sānvaya’; — ‘anvaya’ means relation; he who has some relationship is a ‘relative,’ — such as the son, the wife, the brother and so forth. If such a relative, even though not actually permitted to sell, sells a property, he is not quite a thief; for he is likely to have the idea ‘if it belongs to my father, it is mine’; and in his case it is likely that he will hand over the sale-proceeds to the rightful owner.

The man who has absolutely no relationship with the owner is said to be ‘not a relative,’ ‘niranvayaḥ’; and such a person ‘incurs the guilt of a thief’ — i.e., deserves to be punished as such, undoubtedly. Specially so if he is ‘not one having access’; i.e., if he has no free access to the household of the owner, he should certainly be punished as a thief. If, on the other hand, the property sold by him has been obtained from the household itself, — having been given or sold by some one in the house, — and he has received it through ignorance or folly, — or if he has bought it in an open sale, — then he shall not be punished as a thief; he shall only be fined six hundred.

Or the term ‘apasara,’ ‘access,’ may be taken as standing for modes of acquisition other than purchase, — snoh as gift and the like. The meaning thus is — ‘He is to be regarded as a thief, if he has not purchased it from anyone, nor acquired it through gift or other modes of acquisition.’ — (198)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 103), which adds the following notes: — ‘Avahāryo bhavet,’ should be fined; — ‘svānvayaḥ’ (which is its reading for ‘sānvayaḥ’) a son or some relation of the rightful owner; — ‘ṣaṭśatam,’ six hundred paṇas; — ‘niranvayaḥ,’ not related to the rightful owner; — ‘anapasaraḥ,’ means the removing of the property from the owner’s house; — and the man who does this and sells what belongs to another should be fined six hundred paṇas. If this seller is not a relative of the owner, — and if the removing of the property from the owner’s house has been done, not by any person related to the owner, but by the seller himself, — then he should be punished like a thief. If however the removing has been done by some one else, but the selling is done by the owner’s relative, then the fine may be even more than six hundred paṇas. — The author of

Kalpataru has explained ‘apasara’ as the justification for moving the article from the owner’s possession — such as its being a gift and so forth by which property moves away from the owner’s possession (apasarati anena); and he who has no such justification is ‘anapasara’; and this writer adds that this view has the support of Bhāguri, Medhātithi and the Vṛttikāra.

It is quoted in Vivādacintāmaṇi (p. 41) which has the following notes: — ‘Avahāryaḥ,’ should be made to give up, — ‘sānvayaḥ’ belonging to the family of the owner of the property concerned, — ‘niranvayaḥ,’ not a member of the owner’s family, — ‘anapasaraḥ,’ ‘who has not received the property by any equitable method of acquisition, such as gift and the like’ — ‘ṣaṭśatam,’ he is to be fined 600 paṇas; — and in Kṛtyakalpataru (85b), which explains ‘avahāryaḥ’ as ‘should be made to pay — ‘sānvayaḥ’, as ‘along with his brothers and relatives,’ — ‘ṣaṭśatam,’ i.e., 600 paṇas. — It goes on to say what has been quoted in Vivādaratnākara (above).

Comparative notes by various authors:

(verses 8.198-199)

Arthaśāstra (p. 95). — ‘When the rightful owner has found the article that he had lost or which had been stolen from him, he shall have the man in possession of it arrested by the Judge. If the exigencies of time and place do not permit of this procedure, he may himself arrest the man and take him to the Judge; — the Judge shall ask the man in possession — From where did you obtain this thing? If the man explains the manner of his acquisition, but fails to produce the man who had sold it to him, he should be let off after he has surrendered the property; if the vendor is produced, the vendor should he made to pay the price obtained to the purchaser, and also a penalty for theft.’

Nārada (7.4, 5). — ‘The purchaser must not make a secret of the way in which he came by a chattel purchased by him. He becomes free from blame if he can point out the way in which the chattel was acquired by him. In any other case, he is equally guilty with the vendor and shall suffer the punishment of a thief. The vendor shall restore the property to the rightful owner, and shall pay to the purchaser the price for which he had sold it; besides that, he shall pay a fine to the King.’

Bṛhaspati (13.3, 4). — ‘When the vendor has been produced and cast in the suit, the judge shall make him pay the price to the buyer and a fine to the King, and to restore the property to the owner. When the former owner comes forward and makes good his claim to the thing sold, the vendor shall be produced by the purchaser, who thereupon becomes cleared.’

Vyāsa (Vivādaratnākara, p. 202). — ‘When the purchaser has shown the person from whom he had purchased the article, he shall not be blamed in any way; after that, the dispute shall he between that person and the rightful owner of the lost article.’

Yājñavalkya (2.168, 169, 170). — ‘If one’s property has been sold by another person, the property shall be restored to him; the purchaser becomes guilty if he cannot produce the seller; and he shall be dealt with as a thief, if he bought the thing either in secret, or at a very low price, or at an improper time. If a man comes by his property that had been lost or stolen, he should have the possessor arrested; or if the time or place does not permit of this, he shall arrest him himself and produce him before the court; the man becomes absolved from blame on producing the seller; and from the seller, the owner recovers his property, — the purchaser, the price that he had paid, and the King, a fine.’

Bṛhaspati (13.11) — ‘That should be regarded as Fraudulent Purchase which is made at an unreasonably low price, or in the interior of a house, or outside of the village, or at night, or in secret, or from a dishonest person.’

VERSE 8.199

Section XXXIII - Fraudulent Sale

अस्वामिना कृतो यस्तु दायो विक्रय एव वा ।
अकृतः स तु विज्ञेयो व्यवहारे यथा स्थितिः ॥१९९॥

asvāminā kṛto yastu dāyo vikraya eva vā |
akṛtaḥ sa tu vijñeyo vyavahāre yathā sthitiḥ ||199||

If a gift or sale is made by one who is not the owner, it should be held to be as not-made, — such being the rule of judicial proceedings. — (199)

Medhātithi’s commentary (manubhāṣya):

It is not only purchase from one who is not the owner that is invalid, — but also what is received as ‘gift’ — a ‘gift’ is that which is given either as charity or as a friendly present, — is not valid.

Verse 197 has declared that neither the buyer nor the seller is the owner of the property; and the present verse denies the ownership in cases where it may be considered as having been acquired, in accordance with the law that — ‘one becomes the owner, through inheritance, purchase, partition and gift’ (Gautama, 10.39).

Such is the rule of judicial proceedings, and it should not be transgressed. — (199)

Explanatory notes by Ganganath Jha:

Buhler wrongly asserts that “Nandana omits this verse.”

This verse is quoted (as Nārada’s) in Vivādacintāmaṇi (p. 40); — and in Kṛtyakalpataru (86a).

Comparative notes by various authors:

(verses 8.198-199)

See Comparative notes for Verse 8.198.

VERSE 8.200

Section XXXIII - Fraudulent Sale

सम्भोगो दृश्यते यत्र न दृश्येतागमः क्व चित् ।
आगमः कारणं तत्र न सम्भोग इति स्थितिः ॥२००॥

sambhogo dṛśyate yatra na dṛśyetāgamaḥ kva cit |
āgamaḥ kāraṇaṃ tatra na sambhoga iti sthitiḥ ||200||

Where possession is evident, but no sort of title is perceptible, there title, and not possession, shall be the proof; such is the settled rule. — (200)

Medhātithi’s commentary (manubhāṣya):

In a case where, in connection with such things as cattle, gold, lands and so forth, one man is found to have ‘possession,’ — while the ‘title,’ arising from inheritance, gift and other sources, indicates the ownership of another man, — it is ‘title’ that is to be regarded as more authoritative; and mere possession is no proof of ownership.

‘Such is the settled rate’; — the eternal rule is that mere possession does not create ownership; what sort of possession does create ownership has been explained before, under verse 147; and the seeming incompatibility of the present verse with that has also been explained under that same verse. — (200)

Explanatory notes by Ganganath Jha:

This verse is quoted in Aparārka (p. 635), which says that what is meant is that what proof of ownership is, not mere possession, but possession accompanied by ‘title’ — i.e., something that indicates actual ownership.

Comparative notes by various authors:

Yājñavalkya (2.171). — ‘By title and by possession shall the rightful owner establish his claim to a lost property; if he fails to establish his claim, he shall be fined; he should be made to pay a fine the fifth part of the value of the article concerned.’

VERSE 8.201

Section XXXIII - Fraudulent Sale

विक्रयाद् यो धनं किं चिद् गृह्णीयात् कुलसंनिधौ ।
क्रयेण स विशुद्धं हि न्यायतो लभते धनम् ॥२०१॥

vikrayād yo dhanaṃ kiṃ cid gṛhṇīyāt kulasaṃnidhau |
krayeṇa sa viśuddhaṃ hi nyāyato labhate dhanam ||201||

If a man obtains a property from the market, in the presence of witnesses, he acquires that property with a clear title obtained by legal purchase. — (201)

Medhātithi’s commentary (manubhāṣya):

The present verse shows by what sort of purchase real ownership is produced.

‘Vikraya,’ ‘market,’ is the place where people sell their goods. If one obtains from the market, some property, — goods put up for sale, in the shape of cattle and the rest, — or the price is paid for it, — ‘he acquires it’ — by ‘legal purchase,’ by paying the proper price, — ‘in the presence of witnesses’ — in the shape of intermediaries and brokers; and thus ‘he acquires it,’ and does not forfeit it. If the thing has been purchased from one who is not the rightful owner of it, then the property is restored to the rightful owner, and the bonafide purchaser obtains the price he had paid from the person who had sold it to him. In the event of his purchase being not bonafide, he is punished and also forfeits the property. This is what is thus asserted — ‘The purchaser proves his bonafides by producing the seller, the rightful owner receives the property, and the king receives the fine paid by the seller, the purchaser receives back the price he had paid from the purchaser’ (Yajñavalkya, 2.170).

This same idea is set forth in the present verse. — (201)

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 103), which adds the following notes: — ‘Vikrayāt,’ from the market-place; — ‘Kulasannidhau,’ in the presence of trustworthy traders and brokers; — ‘Nyāyataḥ,’ qualifies ‘krayeṇa’; — ‘viśuddhaḥ’ (which is its reading for ‘viśuddham,’) faultless; — ‘labhate dhanam’, i.e., from the seller; — and in Kṛtyakalpataru (85b), which has the following notes: — ‘Vikrayāt,’ ‘from the ‘market place,’ the word being explained as ‘vikrīyate asmin iti vikrayaḥ,’ — ‘kulasannidhau,’ in the presence of a number of business-men, — ‘nyāyataḥ’ is to be construed with ‘krayeṇa,’ and means a bona fide purchase, on payment of the proper price.

Comparative notes by various authors:

Bṛhaspati (13.7, 8, 10). — ‘When a purchase has been made before an assembly of merchants, the king’s officers also being aware of it, — but from a vendor whose habitation is unknown, or when the purchaser is dead, — the owner may recover his own property by paying half the price tendered; the custom in that case being that one half of the value is lost to each of the two parties. When a man purchases a commodity at a fair price, and the purchase has been announced to the King, there is no wrong about it.’

Bṛhaspati (12.3, 4). — ‘When the vendor has been produced and has been cast in the suit, the judge shall cause him to pay the price to the buyer, a fine to the King, and to restore the property to the owner. When the former owner comes forward and makes good his claim to the article purchased, the vendor shall be produced by the purchaser; by doing so, the purchaser may clear himself.’

Nārada (7.2-5) — ‘No blame attaches to a sale effected in public; but a clandestine sale is viewed in the same light as theft, according to law. The purchaser must not make a secret of the way in which he came by a chattel purchased by him. He becomes free from blame if he can point out the way in which the chattel was acquired by him. In any other case he is equally guilty with the vendor, and shall suffer the punishment of a thief. The vendor shall restore the property to the rightful owner, and shall pay to the buyer the price for which it was sold to him; besides that, he shall pay a fine to the King.’

VERSE 8.202

Section XXXIII - Fraudulent Sale

अथ मूलमनाहार्यं प्रकाशक्रयशोधितः ।
अदण्ड्यो मुच्यते राज्ञा नाष्टिको लभते धनम् ॥२०२॥

atha mūlamanāhāryaṃ prakāśakrayaśodhitaḥ |
adaṇḍyo mucyate rājñā nāṣṭiko labhate dhanam ||202||

If the source cannot be traced, the person (buyer), whose conduct has been cleared by the fact of the sale being public, is let off without punishment, but the man who lost the property shall receive it back. — (202)

Medhātithi’s commentary (manubhāṣya):

It has been laid down that purchases shall be made from persons not suspected of dishonesty; hence where the seller is capable of being produced, the rule just quoted becomes applicable; but if the m in having sold the property goes away, — and ‘the source,’ — the seller — cannot be produced by the man who bought from him the property that is now recognised by its real owner as his own, — then the purchaser has his character cleared by the fact that he made the purchase in the open market, — in the presence of a large number of men; and on that account he is let off without punishment.

But the property is restored to the rightful owner, ‘the person who had lost it’ and then recognised it as his own.

The term ‘nāṣṭikaḥ’ means he who has lost, derived from the participial noun ‘naṣṭa’ with the possessive affix ‘ṭhan’ and then the reflexive affix ‘aṇ’; or it may be explained as meaning ‘he who is seeking for his lost property.’

The sense in brief is this: — In the case of a public sale, there is to be no punishment, but the loss of the price paid remains. — (202).

Explanatory notes by Ganganath Jha:

This verse is quoted in Vivādaratnākara (p. 103), which adds the following notes: — ‘Mūlam,’ the original seller, who sold the article which did not belong to him; — if he is ‘anāhārya’, incapable of being produced by the purchaser, by reason of his being in a foreign country; — but the purchaser is one who had made his purchase openly, — then this latter is not to be punished; — but the actual owner shall receive back his property which had been fraudulently sold.

It is quoted in Vyavahāramayūkha (p. 87), which reading ‘anāhārya’ for ‘anāhāryam’, explains it as ‘not producing;’ — the meaning being ‘even though the buyer is unable to produce the original seller, if his purchase is found to be bona fide by reason of its having been done in public.’

It is quoted in Aparārka, (p. 776), which adds the following explanation: — ‘Mūlam’ is the original seller; — if he is incapable of being produced by reason of his whereabouts being unknown.

It is quoted in Parāśaramādhava (Vyavahāra, p. 215), which adds that the rightful owner is to receive his property from the purchaser, only on paying to him one half of the price that had been paid for it; — this opinion being based upon a clear declaration to that effect by Kātyāyana; — in Vivādacintāmaṇi (p. 43), which adds the following explanation: — ‘Where the selling has been done openly, — and yet the original owner proves his claim to the property concerned, — and the property concerned is not returnable, by reason of its having been exported to foreign lands, and so forth — then the bona fide purchaser is not to be punished, but he is to be made to refund the price to the real owner — and in Kṛtyakalpataru (86a).

Comparative notes by various authors:

(See the texts under verses 198-199 and verse 201.)

Viṣṇu (5.164-165). — ‘He who buys unawares in open market the property of a person other than the rightful owner is not to blame; but the owner shall recover his property.’

Yājñavalkya (2.169-170). — (See under 198-199.)

Kātyāyana (Aparārka, p. 176). — ‘One should make a purchase and pay its price openly.’

VERSE 8.203

Section XXXIII - Fraudulent Sale

नान्यदन्येन संसृष्टरूपं विक्रयमर्हति ।
न चासारं न च न्यूनं न दूरेण तिरोहितम् ॥२०३॥

nānyadanyena saṃsṛṣṭarūpaṃ vikrayamarhati |
na cāsāraṃ na ca nyūnaṃ na dūreṇa tirohitam ||203||

Any commodity that is mixed up with another should not be sold; nor what is without substance, nor what is deficient, nor what is at a distance, nor what is concealed. — (203).

Medhātithi’s commentary (manubhāṣya):

In course of the treatment of ‘Sale without Ownership,’ the author proceeds to lay down other rules also in connection with sales.

‘Any commodity’ — such as saffron — ‘that is mixed up with another’ — commodity, which is of an inferior quality, and which is only similar to it — such as the kusumbha flower — ‘should not he sold.’

‘Nor what is without substance’ — i.e., which, having been kept closed in a vessel for a long time, has lost its substance, has become defective and decays, though appearing as fresh; e.g., cloth and other commodities.

‘Nor what is deficient’; — i.e., less in weight or measure.

‘Nor what is at a distance’ — away from the place of sale; and described as ‘clothes or sugar or such things lying in my house in the village.’

‘Nor what is concealed’ — tied up and hidden in a piece of cloth; or the real form of which is hidden by the colour of another substance; what is old but appears to be new is also called ‘concealed.’

Commodity of these kinds should not be sold; it shall be sold after having been fully exposed and described; sales effected otherwise are invalid; and there would be nothing wrong in such being revoked even after the lapse of ten days.

Since no penalty in connection with this is here prescribed, it shall be understood to be what has been laid down in 193 in connection with ‘fraudulent transactions’ in general.

Others, however, hold that since that penalty is laid down in another context, that in connection with what is referred to here must he what has been prescribed for ‘selling without ownership.’ — (203)

Explanatory notes by Ganganath Jha:

‘Tirohitam’ — ‘Concealed’ — ‘in cloth or some such cover’ (Medhātithi and Nārāyaṇa), — ‘in the earth’ (Nandana), — ‘covered with paint’ (Govindarāja, Kullūka and Rāghavānanda).

This verse is quoted in Vivādaratnākara (p. 199), which reads saṃsṛṣṭam rūpam for ‘saṃsṛṣṭarūpam’ and adds the following notes: — ‘Anyat’, saffron and such costly tilings, — ‘anyena’ the Kusumbha flower and such cheaper tilings, — ‘saṃsṛṣṭam,’ adulterated, — ‘rūpam,’ commodity, — ‘sāvadyam,’ defective, — this last is meant to include all defects other than those just specified; — ‘nyūnam,’ less in weight — ‘dure,’ being at a distance and hence incapable of having its defects detected, — ‘tirohitam,’ covered by cloth or some such thing; — and in Kṛtyakalpataru (110a).

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