CHAPTER THIRTEEN

Medieval Commentators and Systematizers

13.1 VIJNANESVARA

(See headnote to ch. 8.2.1.)

As already noted, Vijnanesvara, in contrast to his predecessor Visvarupa, is particularly interested in law in the strict sense and in the procedures that should be followed in courts of law. His commentary on the second chapter of Yajnavalkya’s root text that deals with legal procedure (vyavahāra) is nearly twice as long as his commentary on the first chapter dealing with proper conduct (ācāra). I give below some selections that are representative of his juridical thinking.

Selection #1 deals with the filing of a lawsuit and the procedural rules relating to the initial charge, the summoning of the defendant, writing down the plaint and plea, and issues relating to evidence that each litigant would use during the trial. Vijnanesvara presents detailed discussions of the requirements of a valid plaint and plea, and the various classifications of plea. He also clearly delineates the entire court proceeding, from the initial filing of the charges to the verdict and the enforcement of the verdict.

The next selection deals with countersuits that the accused may file against the plaintiff. This is generally disallowed except when the suit deals with specific matters, such as altercations. The defendant in a lawsuit, moreover, is also protected from further suits by other individuals while the court proceedings are ongoing.

Selections #3 and #4 deal with evidence, both how it should be evaluated in reaching a verdict and the kinds of evidence and their relative strength. What happens, for example, if a plaint contains several charges and only some of them are substantiated by evidence? What happens when there is contradictory evidence? How can one identify forged documents and perjured testimony? He also presents a very weak and somewhat idiosyncratic defense of the principle of enjoyment as proof of ownership. Basically, he agrees with the opponent that enjoyment alone can never prove ownership. The only right such enjoyment gives to the man is that he is not expected to return any products that he has consumed: for example, he does not have to return the rice he has harvested from a property he enjoyed without title when the property is returned to its rightful owner.

Finally, in selection #5, Vijnanesvara deals with the gradation of courts and the appeals process for litigants who lose their cases in lower courts.

Even though he presents detailed rules for filing lawsuits, Vijnanesvara appears to be lenient with regard to lapses in following those rules. Thus in selection #2 he says that a litigant identified as hīnavādin, which generally refers to one who has lost his case because of procedural flaws, actually does not lose his case, but is only subject to a fine.

Medhatithi viewed rules of legal procedure as based on reason and practice, not on the Veda. Even though Vijnanesvara does not engage is such bold assertions, we see hints that he also considered many of the rules contained in Yajnavalkya’s text to be based on jurisprudential reasoning (nyāya) and, at least implicitly, not on the Veda. Thus in his comments on YDh 2.23cd, he says, “It is solely on this legal reasoning that this statement is based.” Likewise, ownership of property is based on worldly customs and not on textual or scriptural sources (śāstra).

Although, as noted above, I have used the text from my forthcoming edition of the YDh as the basis for my translations in chapters 5 and 11, here, rather, I use the text that formed the basis of Vijnanesvara’s own commentary, and also his numbering of the verses.

1

If someone who has suffered an injury at the hands of others in a manner contrary to texts of recollection or normative practice reports it to the king, it is indeed a subject of litigation. (YDh 2.5)

If someone who has suffered an injury—i.e., has been attacked—at the hands of others in a manner contrary to the dictates of treatises on dharma or proper practice reports it to the king or to a judge, it, as it is reported, becomes a subject of litigation. Litigation consists of plaint, plea, doubt, reason,¹ reflection, evidence, verdict, and enforcement. Its subject is its scope. This is the general definition of litigation.

It is, furthermore, of two kinds, containing an accusation based on suspicion and an accusation based on fact, as Narada states:

A lawsuit, however, should be recognized as having two kinds of accusations, in terms of an accusation based on suspicion and an accusation based on fact. Suspicion, however, comes from association with bad people, and fact from finding such things as stolen goods. (NSm Mā 1.22)

…An accusation based on fact is also of two kinds: one consists of an omission and the other consists of a commission. For example: “He borrowed money and so forth from me and does not return it”; and, “He is stealing my land and so forth.”…

The phrase “If someone…reports it to the king” points out that the man comes of his own accord and reports it, and is not sent by the king or one of his officials. Accordingly, Manu states: “Neither the king nor any official of his shall initiate a lawsuit on his own; nor shall he in any way suppress an action brought before him by someone else” (MDh 8.43).

The phrase “at the hands of others,” meaning at the hands of one, two, or many others, points out that litigations may be initiated by one person against one, two, or many individuals….

The same phrase, “If someone…reports it to the king,” means that when he is questioned by the king, he, wearing a modest garment, should report. And if what is reported is proper, the defendant is summoned through such means as a dispatch with the royal seal, while individuals such as those indisposed are not summoned— matters such as these have not been explicitly stated, because they are established by implication. In a different text of recollection, however, this has been clearly stated:

At the proper time, he should ask the plaintiff standing before him and pleading: “What is your case? What is your injury? Do not be afraid, gentleman; speak up.” By whom? In what place? When? Why?—so should he question someone who has approached the court. When the man so questioned gives a reply, he should reflect on it along with the assessors and Brahmans. If the case is proper, he should then issue the summons: he should either dispatch the royal seal to the man or send an official with orders.

The king should not summon the following: the indisposed; children; the elderly; those in difficult circumstances or burdened with obligations; those who would suffer a great deal of harm to their undertakings; those suffering a calamity; those burdened with royal duties or a religious festival; those who are insane, intoxicated, totally unmindful, or anguished; and dependents; as also, these kinds of women: helpless, young, of noble birth, having just given birth, of the highest social class, and a virgin—these are said to be under the authority of their relatives. It is permitted to issue summons to the following women: those on whom their families depend or who are licentious, prostitutes, the lowborn, and those fallen from their caste. Taking into consideration the time and place, as also the relative gravity of the case, the king may summon even the indisposed and so forth, sending vehicles to bring them slowly. In serious cases, after reviewing the accusation, the king may summon even recluses and the like living in forests without making them angry.²

The norms relating to arrest also, which are established by implication, are given by Narada:

When a man does not make himself available as a case against him is about to be filed, or when he brushes off the plaintiff’s directive, the latter may place him under legal detention until the court summons has been conveyed. Legal detention is of four kinds: detention in a particular place, for a particular length of time, with respect to travel abroad, and with respect to a particular activity. A man placed under legal detention shall not defy it.

When a man placed under legal detention at the proper time for legal detention violates it, he should be fined; whereas a man placing someone under legal detention in a wrongful manner should be punished.³

While crossing a river, in a wild tract, in a dangerous region, and during turmoil— someone placed under legal detention in circumstances such as these does not commit a crime by violating that legal detention executed by a foe—as also someone planning to get married, afflicted with a sickness, preparing to offer a sacrifice, or struck by a calamity; someone sued by another person or occupied with royal business; cowherds while looking after cows, farmers while harvesting the crop, craftsmen while engaged in their work, and soldiers during hostilities. (NSm 1.41–46)

“Legal detention” means confinement on the orders of the king. The indisposed and the rest should send a son or the like or some other friend to represent them. Such individuals do not fall into the category of a person who illegally speaks for another in a lawsuit, because of Narada’s statement: “When a man who is not the brother, the father, the son, or a duly appointed proxy speaks for another in a lawsuit, he deserves to be punished, as also anyone who speaks falsely” (NSm Mā 2.23).

In the presence of the defendant, the allegation should be written down exactly as it was reported by the plaintiff, recording the year, month, fortnight, day, name, caste, and the like. (YDh 2.6)

….

Given that at the original time of reporting the words of the plaintiff were already written down, it would be pointless to write them down again. To answer this objection, the author says: “year, month” and the rest…. The phrase “and the like” is meant to include such factors as the article and its quantity, place, time, reason for forbearance,⁴ and the like. As it is said:

Containing the charge; endowed with the required characteristics; complete; distinct; containing the issue to be proved; using words with literal meanings; conforming to the original charge; well recognized; not conflicting; certain; capable of proof; concise, yet containing the entire charge; not inconsistent with regard to place and time; stating the year, season, month, fortnight, day, time, country, region, place, house, the name of the article contained in the charge, caste, appearance, and age; containing the dimensions and the amount of the article contained in the charge; stating the names of the plaintiff and the defendant; inscribed with the names of the ancestors of opponent and self, and of several kings; stating the reasons for forbearance and the injury suffered; and pointing out the taker and the donor—when a report containing these characteristics is made to the king, it is known as the plaint.⁵

…The difference is that at the time of the initial reporting only the charge was written down, whereas in the presence of the defendant it is written down along with attributes such as the year and month.

Even though the attribute of year is not necessary in all lawsuits, nevertheless in pledges, gifts, and sales it is necessary to arrive at a verdict, because of the statement: “in the case of a pledge, gift, or purchase, however, evidence relating to an earlier transaction has greater force” (YDh 2.23). It is also necessary in a lawsuit relating to money. For example, in a given year a man borrows a certain amount of money from a particular individual and returns it. Then in a different year the same man again borrows the same amount of money from the same individual. When the latter demands it, if he says, “True, I did borrow it, and I returned it,” it can then be shown that the amount was borrowed and returned in a different year and not in the year in question. One should consider the applicability of the month and so forth also in the same manner. The attributes such as region and place, on the other hand, are necessary only in the case of immobile articles, because a text of recollection states:

Country, place, location, caste, name, neighborhood, extent, name of the field, the father and grandfather, and enumeration of past kings—one should record these ten in lawsuits pertaining to immovable property. (=KātSm 127–28)

“Country,” such as the middle country. “Place,” such as Varanasi. “Location” refers to a house, field, and the like distinctly located in that very place and with its eastern and western boundaries demarcated. “Caste” refers to the fact that the plaintiff and the defendant are a Brahman and the like. “Name,” such as, Devadatta. “Neighborhood” refers to the people living in the vicinity. “Extent” is a Nivartana⁶ and similar size of the land. “Name of the field,” such as Sali field, Kramuka field, Krsna land, Pandu land. The names of the father and grandfather of the plaintiff and the defendant. Enumeration of the names of the previous three kings.

The intent is that among the year and so forth, what is useful to a particular lawsuit should be written down.

Given that the defining characteristics of a plaint have been determined in this manner, the specious nature of plaints that outwardly appear to be plaints but lack the defining characteristics of a plaint is clearly established. Consequently, Yogisvara (Yajnavalkya) has not described specious plaints separately. Others, however, have described them very clearly: “He should reject a specious plaint that is implausible, presents no loss, is meaningless, is without cause, is incapable of proof, or is contrary” (KātSm 140). An implausible plaint is one such as: “He borrowed my hare’s horn and does not return it.” A plaint that presents no loss is one such as: “He carries on his activities in his house with the light provided by the lamp in my house.” A meaningless plaint is one devoid of sense, such as “kacaṭatapagajaḍadaba.”⁷ A plaint without cause is one such as: “Devadatta here recites the Veda in a lovely voice in front of our house.” A plaint that is incapable of proof is one such as: “Devadatta laughed at me while knitting his brow.” The latter is incapable of proof because there can be no evidence. Because the act was so fleeting, it is impossible to find witnesses, much less a document; and because it is trifling, there cannot be an ordeal. A plaint that is contrary is one such as: “I was cursed by a dumb man.” Or it may be one that runs contrary to the city, country, and the like:

All these suits are said to be inadmissible: one that is proscribed by the king; one that is hostile to the inhabitants of the city, to the entire country, as well as to the major constituencies of the state; as also those hostile to the prominent men of a city or a village. (BṛSm 2.43)

Now, with regard to the statement: “A plaint that mixes several subjects is invalid” (KātSm 136), if it is said to mix several things, then there is no fault, because plaints of the following sort are not faulty: “This man has stolen my gold, clothes, or money and other such items.” If it is argued that mixing subjects such as the nonpayment of debts results in a specious plaint, that is also incorrect. One does, indeed, take as legitimate plaints ones such as the following: “This man borrowed my money on interest, and I deposited gold with him. This man has stolen my field.” On the contrary, it only means that, because they involve different kinds of evidence, the plaints of the lawsuit should be heard sequentially and not simultaneously. Accordingly, Katyayana has said: “With the desire to find out the truth, a king may freely admit even a lawsuit with multiple plaints that is ascertained to be well in conformity with legal procedure” (KātSm 137). Therefore, the meaning of the above statement is that a plaint that mixes many subjects is invalid when the subjects are taken up simultaneously.

The use of the term “plaintiff” (YDh 2.6) comprehends his son, father, and the like, because they share a common interest in the lawsuit. It comprehends also an appointed designee, because by that very appointment he shares a common interest in the case. The legal victory or defeat of an appointed designee actually belongs to the original leading litigants, according to the text of recollection:

Whether a man has been appointed by the plaintiff or deputized by the defendant, when he argues the case of the other, the victory and the defeat affect just the two of them. (KātSm 91)

This plaint, moreover, should be first written down, either on the ground or on a plank using white chalk, and then, after it has been corrected by addition and deletion, it should be written on paper, because of Katyayana’s statement:

The adjudicator should have the plaint that has been spontaneously presented written down, first on a plank using white chalk and then, once it has been corrected, on paper. (KātSm 131)

Corrections, furthermore, may be carried out only until a plea has been entered and never after that, because that would result in a never-ending process. For this very reason, Narada has stated:

He may correct the plaint, however, only until a plea has been entered. Once the plaint has been checked by the plea, the correction has to be halted.⁸

When the assessors have a plea entered even before getting the plaint corrected, then the king should punish them with the fine specified in the statement: “Assessors who act contrary to texts of recollection or in a similar manner out of love, greed, or fear should be punished individually with a fine equal to twice the amount under litigation” (YDh 2.4). Then he should proceed over again with the case preceded by the plaint.

Now, the question arises as to what must be done once the plaint corrected in this manner has been written down on paper. Therefore, the author says:

After the defendant has heard the plaint, his plea should be written down in the presence of the plaintiff. (YDh 2.7ab)

…The refutation of the plaint is called a plea. Accordingly, it is said:

Encompassing the plaint, substantive, unambiguous, not confusing, and comprehensible without an explanation: such, experts in these matters state, is a plea.⁹

“Encompassing the plaint,” that is, capable of refuting it. “Substantive,” that is, reasonable, not contrary to reason. “Unambiguous,” that is, without uncertainty. “Not confusing,” that is, not contradicting what was said before or after. “Comprehensible without an explanation,” that is, its meaning should not need explanation because of the use of obscure words, or of elliptical language with compounds where the implied cases of the words are equivocal, or of a foreign language.¹⁰ This is the sort that constitutes a proper plea.

There are four kinds of such pleas: admission, denial, special plea, and prior judgment. Accordingly, Katyayana says: “Admission, denial, special plea, and prior judgment: these are the four kinds of plea” (KātSm 165).

Of these, admission is as follows: when it is alleged, “He owes me one hundred rupee coins,” he replies, “True, I do owe that.” Accordingly, it is said, “Stating the truth of the charge is said to be admission” (KātSm 168).

Denial, on the other hand, is to say, “I do not owe that.” Accordingly, Katyayana says:

If the accused rejects the accusation, one should recognize that plea as denial in terms of legal procedure. (KātSm 167)

A plea of denial, furthermore, is one of four types:

“This is false”; “I do not know anything about this”; “I was not present there at that time”; and “I was not born at that time”—these are the four types of denial. (KātSm 169)

Special plea is this: “True, I took it, but I returned—or—I received it as a gift.” Accordingly, Narada states:

With regard to the charge written down by the plaintiff, if the defendant after admitting, “It is so,” provides an exculpating reason, it is said to be a special plea.

A plea of prior judgment, on the other hand, is when the accused states this: “I was already accused by him with respect to this charge. On that occasion, he was defeated through a legal trial.” Katyayana, moreover, states:

If a man has a plaint recorded once again even though he has suffered a loss in a court proceeding, one should tell him: “You have been already defeated.” This is called a plea of prior judgment. (KātSm 171)

Given that the defining characteristics of a plea have been determined in this manner, the specious nature of statements that outwardly appear to be pleas but lack their defining characteristics is established by implication. This is clarified in another text of recollection:

What is ambiguous, what is different from the original charge, what is too small or too large, what covers only a part of the plaint—none of these constitutes a plea. What slips into a different subject of litigation, what does not cover the entire plaint, what has a hidden meaning, what is inconsistent, what is intelligible only with explanations, and what is not meaningful—these do not constitute a plea that would bring success to his case. (=KātSm 188, 175)

In this passage, the ambiguous is like this: when it is alleged, “This man took one hundred Suvarṇa gold coins,” he replies, “True, I took one hundred Suvarṇa gold coins or one hundred Māṣa gold coins.” What is different from the original charge is as follows: when the accusation relates to one hundred Suvaṇa gold coins, he says, “I do owe one hundred Paṇa copper coins.” What is too small is as follows: when the accusation relates to one hundred Suvarṇa gold coins, he says, “I do owe five hundred.” What is too large is as follows: when the accusation relates to one hundred Suvarṇa coins, he says, “I owe two hundred.” What covers only a part of the plaint is as follows: when the accusation relates to gold, clothes, and so forth, he says, “I took the gold and nothing else.” What slips into a different subject of litigation is as follows: when the accusation relates to the nonpayment of a debt, the plea uses a different subject of litigation, as, for example, when the accusation relates to one hundred Suvarṇa gold coins, he says, “He beat me up.” What does not cover the entire plaint does not cover such attributes as the region and place, as, for example, when the plaint has been written: “A field located in the middle region, in Varanasi, in the eastern direction was seized by him,” the plea says, “A field was seized.” What has a hidden meaning is like this: when the accusation relates to one hundred Suvarṇa gold coins, he says, “Is it only I who owe him?” Here by allusion it suggests that the adjudicator, the assessor, or the plaintiff owes to someone else. Hence it has a hidden meaning. What is inconsistent is a plea in which there are contradictions between statements made earlier and later, as, for example, when the accusation has been made relating to one hundred Suvarṇa gold coins, he says, “True, I did take it, but I do not owe.” What is intelligible only with explanations is a plea that is intelligible only with explanations because of the use of elliptical language with compounds where the implied cases of the words are equivocal or because of the use of words from a foreign language….¹¹ What is not meaningful is a plea that goes against reason, as, for example, when there is an accusation: “This man took one hundred Suvarṇa gold coins on interest. He paid only the interest but not the principal,” he says, “True, I paid the interest, but I did not take the principal.”

The use of “plea” in the singular precludes a combination of several pleas. Accordingly, Katyayana says:

When there is an admission with regard to one portion of the plaint, a special plea with regard to another portion, and a denial with regard to some other portion, it is an invalid plea due to a combination. (KātSm 189)

He himself states the reason it is an invalid plea:

In a single lawsuit, however, the burden of proof cannot fall on both the litigants; both cannot succeed in demonstrating the case; and there cannot be two kinds of proof in the same case. (KātSm 190)

When there is a combination of denial and special plea, the burden of proof falls on both the plaintiff and the defendant, because of the text of recollection: “When there is a denial, the burden of proof falls on the plaintiff, while when there is a special plea it falls on the defendant.” There is a contradiction when both occur in the same lawsuit, as, for example, when there is an accusation: “This man has taken a Suvarṇa gold coin and one hundred rupee coins,” and he says, “I did not take the Suvarṇa coin. I did take the one hundred rupee coins, but I returned them.” When there is a combination of special plea and prior judgment, however, both burdens of proof fall on the defendant alone: “When the two pleas consist of prior judgment and special plea, the defendant should present the proof.”¹² For example, “I did take the Suvarṇa coin but returned it. With regard to the rupee coins, he was defeated in legal trial.” In this case also the prior judgment should be proved by producing the victory document or through eyewitnesses, whereas the special plea should be proved through witnesses, documents, and the like. Hence, there is a contradiction. Combinations of three pleas should be considered in the same way, as, for example, when there is an accusation: “This man took a Suvarṇa gold coin, one hundred rupee coins, and clothes,” he says, “True, I took the Suvarṇa gold coin, but I gave it back. I did not take the one hundred rupee coins. With respect to the clothes, however, he was defeated in a previous trial.” The same goes also for the combination of all four kinds of plea.

These are considered invalid pleas, moreover, only when they are taken up simultaneously, because each individual portion cannot be proven without the corresponding proof. When they are taken up sequentially, they are valid indeed. The sequence is determined by the wishes of the plaintiff, defendant, and assessors. When, moreover, there is a combination of two pleas, the first trial should be conducted with respect to the one dealing with the more significant amount by presenting evidence for that plea. Thereafter, one should proceed with the trial by taking up the plea dealing with the smaller amount. When there is a combination of admission and another kind of plea, however, one should proceed with the trial by taking up the other kind of plea, because no proof is needed in the case of admission. Accordingly, Harita, after introducing the issue:

If both a plea of denial and a special plea are given in the same case, or admission accompanied by another plea, which of these pleas should be accepted?

states:

It should be the plea that deals with the more significant amount or where the evidence will bear fruit; such a plea is not combined. Otherwise…

The rest of the sentence is: “it becomes combined.” The meaning is that, with respect to the rest, the sequence is according to one’s wishes. In this case, a plea dealing with the more significant amount is as follows. To an accusation: “This man took a Suvarṇa gold coin, one hundred rupee coins, and clothes,” he responds, “True—I did not take the Suvarṇa gold coin or the one hundred rupee coins; but I did take the clothes, which I returned.” Here, because the plea of denial pertains to the more significant amount, he should take the evidence presented by the plaintiff and carry out the first lawsuit, and afterward the lawsuit pertaining to the clothes. The same principle should be applied to the combination of denial and prior judgment, as well as to the combination of special plea and prior judgment. For example, in that same accusation, take the case of a plea: “True, I did take the Suvarṇa gold coin and the one hundred rupee coins, and I will return them. However, I did not take the clothes,” or “I took the clothes but returned them,” or, “in the case of the clothes, he was previously defeated in a trial.” Here, even though the admission pertains to the more significant amount, because no evidence is presented there, he should proceed with the trial by taking the evidence with regard to the plea of denial and so forth. Take the case of two pleas, denial and special plea, however, that cover the entire plaint. For example, someone taking the horns as an identifying mark says: “This cow of mine was lost at this particular time. I saw it in this man’s house today.” The other man, however, says: “That is false. It was in my house even before the time he has mentioned,” or “It was born in my house.” Now, this is not an invalid plea, because it is able to rebut the plaint. It is neither simply a plea of denial, because a special plea has been introduced, nor a special plea, because no admission is made even with regard to a portion of the plaint. Therefore, this is a plea of denial coupled with a special plea. And here the burden of proof is on the defendant, because it is stated: “In a special plea, the burden of proof falls on the defendant” (DhKo I: 221).

Why is it that the burden of proof does not fall on the plaintiff, because it is stated: “In a plea of denial the burden of proof falls on the plaintiff”? (DhKo I: 221)

That is because this statement refers to an uncombined plea of denial.

How is it then that the statement, “In a special plea, the burden of proof falls on the defendant,” also does not refer to an uncombined special plea?

That is not true, because, given that each and every special plea is accompanied by a plea of denial, an uncombined special plea simply does not exist. In special pleas we are acquainted with, the very admission of one portion of what is alleged in the plaint results in the denial of another portion of it. For example: “True, I took one hundred rupee coins, but, because I returned them, I do not owe anything.” The difference, however, is that in the original example not even a portion of what is alleged in the plaint is admitted. This has been clearly explained by Harita: “Between a denial and a special plea, one should take up the special plea.”¹³

There may be an instance where a combined plea of denial and prior judgment would cover the entire plaint. For example, when someone is accused: “He owes me one hundred rupee coins,” he replies, “That is untrue. On this very issue, he was defeated in a previous lawsuit.” Here also the burden of proof falls squarely on the defendant, because of the statement: “In a plea of prior judgment and a special plea the defendant should produce the evidence.” This is also because an uncombined prior judgment simply does not exist, because that would make it an invalid plea.

An admission also is a valid plea, precisely because it eliminates from the plaint, which was presented as something in need of proof, that very characteristic by presenting it as something already proved.

When, however, there is a combination of a special plea and prior judgment, as, for example, when someone is accused: “He took one hundred,” he replies, “True, I did take, but I returned it. And in this very case, this man was defeated through a prior judgment,” then one should proceed according to the wishes of the defendant.¹⁴

In this way, it should never result that the burden of proof falls on both the plaintiff and the defendant in a single legal proceeding. That is the final conclusion.

After the plea has been written on paper in this manner, this question arises: who should present the evidence, given that proving what is to be proven depends on evidence? Therefore, he says:

Immediately thereafter, the plaintiff should have the evidence he will use to prove what is alleged in his plaint written down. (YDh 2.7cd)

…

When he says, “the plaintiff should have the evidence he will use to prove what is alleged in his plaint written down,” he means that the person who has the burden of proof should have the evidence for what is alleged written down. And therefore, in a plea of prior judgment, because it is the prior judgment that requires proof, the defendant is turned into the plaintiff. So, it is he who must write down the evidence. In a special plea also, because it is the special plea that requires proof, the very man who made the special plea is turned into the plaintiff. So, it is he who must write down the evidence. In a plea of denial, however, the original accuser is himself the plaintiff, and it is he who must point out the evidence.

When he says, “thereafter, the plaintiff should have written down,” what he means to say is that the plaintiff himself should have it written down, not someone else.

And for the same reason, in a plea of admission the very presentation of evidence does not take place, because, given that there is nothing to prove, neither the person presenting the plaint nor the person making the plea occupies the position of plaintiff. Therefore, it is understood that right at this point the lawsuit is completed.

These very points have been made clearly by Harita: “In pleas of prior judgment and special plea, however, the defendant should present the evidence, whereas in a plea of denial it is the plaintiff. In an admission, there is no evidence.”

…

If the evidence is validated, he wins the case; the opposite, if it is otherwise. (YDh 2.8ab)

….

In litigations, the above legal procedure has been shown to have four feet. (YDh 2.8cd)

….

Of these, the first is the foot consisting of the plaint, stated in: “In the presence of the defendant, the allegation should be written down” (YDh 2.6). The second is the foot consisting of the plea, stated in: “After the defendant has heard the plaint, his plea should be written down” (YDh 2.7ab). The third is the foot consisting of evidence, stated in: “Immediately thereafter, the plaintiff should have the evidence he will use to prove what is alleged in his plaint written down” (YDh 2.7cd). The fourth is the foot consisting of proving what has to be proven, stated in: “If the evidence is validated, he wins the case” (YDh 2.8ab)….

When there is a plea of admission, however, because there is no presentation of evidence and the case made in the plaint does not have to be proved, the foot consisting of proving what has to be proven is absent. Consequently, the legal procedure here consists of only two feet.¹⁵

Immediately after entering the plea, there follows among the assessors a deliberation on the burden of proof characterized by a reflection as to whether the evidence should be presented by the plaintiff or the defendant. But Yogisvara (Yajnavalkya) does not mention this as a foot of legal procedure, and such deliberation is unconnected with the litigants. Therefore, it is certain that such deliberation does not constitute a foot of legal procedure.

2

….

Until the accusation has been disposed of, the defendant may not file a counteraccusation against the plaintiff. (YDh 2.9ab)

…. Until the accusation has been disposed of, i.e., has been removed, he may not file a counteraccusation, i.e., not charge with an offense, the plaintiff. Even though a special plea has the characteristic of a countersuit, nevertheless that does not fall within the scope of this prohibition because it is intended to remove the offense that he is charged with. Therefore, this prohibition refers to a countersuit that is not aimed at squashing the suit against oneself. This is stated with reference to the defendant.

Then, with reference to the plaintiff, he states:

No one else may file an accusation against the accused; and what has been stated may not be altered. (YDh 2.9cd)

When a man has been sued by one person, another plaintiff shall not sue him before the first suit has been disposed of. Furthermore, “what has been stated,” i.e., what was stated at the time the charges were initially filed, “may not be altered,” i.e., changed to something contrary to it. What he means to say is this. Whatever item with whatever characteristics was reported at the time of filing the initial charges, that item should be written down with exactly the same characteristics also at the time of the formal plaint, and in no other form.

Is it not true that this has already been stated: “In the presence of the defendant, the allegation should be written down exactly as it was reported by the plaintiff” (YDh 2.6)? For what reason it is stated again: “what has been stated may not be altered”?

We reply. The passage, “In the presence of the defendant, the allegation should be written down exactly as it was reported by the plaintiff,” states that whatever item was reported at the time of the initial filing of charges, that same item should be written down in exactly the same way also at the time of the formal plaint; there should not be a different item given within the same subject of litigation. So, for example, after stating at the time of the initial filing of charges: “This man took one hundred rupee coins on interest,” at the time of the formal plaint in the presence of the defendant he should not state: “He took one hundred items of clothing on interest.” That being the case, even if he does not proceed to another subject of litigation, by proceeding to a different item he is liable to be punished as a flawed litigator.¹⁶ With the statement, “what has been stated may not be altered,” even though the item remains the same, proceeding to a different subject of litigation is prohibited. For example, after stating at the time of filing the initial charges: “After taking one hundred rupee coins on interest, he does not return them,” at the time of the formal plaint, he says: “He robbed one hundred rupee coins by force.”¹⁷ In the former case, proceeding to a different item was prohibited; here, on the other hand, proceeding to a different subject of litigation is prohibited. Thus, there is no tautology. This same point has been clarified by Narada:

When someone, after abandoning the previous subject of litigation, once again takes up a different one, he should be recognized as a flawed litigant because he went on to a different subject of litigation. (NSm Mā 2.24)

A flawed litigant should be punished; he does not lose the original lawsuit. Therefore, the instruction contained in statements such as: “Until the accusation has been disposed of” (YDh 2.9ab) is meant only to obviate errors on the part of the plaintiff and the defendant; its scope does not include the success or failure in the original lawsuit. For this very reason he will state: “Discarding subterfuge, the king should conduct judicial proceedings in accordance with the facts” (YDh 2.19).

One should understand, moreover, that this applies to lawsuits relating to property. In the case of a lawsuit relating to an act committed through anger, however, when an erroneous statement is made, the man indeed loses even the original lawsuit. Accordingly, Narada states:

In all litigations concerning property, one is not defeated when he engages in subterfuge; in those relating to farm animals,¹⁸ women, land, and nonpayment of debts, even though he should be punished, he does not lose the case. (NSm Mā 2.25)

The meaning of this is as follows. In all litigations concerning property, but not in those relating to acts committed through anger, even when he, engaging in subterfuge, makes an erroneous statement, he is not defeated. The meaning is that he does not lose the original lawsuit. An example of this is contained in the statement, “farm animals, women….” As in cases relating to farm animals, women, land, and the nonpayment of debts, even though the man must be punished for making an erroneous statement, he does not lose the original lawsuit, so also in all litigations relating to property. Because the expression “litigations concerning property” is used, it is understood that when an erroneous statement is made in litigations relating to acts committed through anger, the litigant loses even the original lawsuit. For example, after stating at the initial filing of charges: “This man hit my head with his foot,” when at the time of the formal plaint a man says: “This man hit my hand with his foot,” he not only is punished but also loses the case.

He gives an exception to the rule: “Until the accusation has been disposed of, the defendant may not file a counteraccusation against the plaintiff.”

He may, however, file a counteraccusation in cases involving brawls and violence. (YDh 2.10ab)

Altercation consists of verbal or physical assault, and violence refers to such offenses as killing a living being by means of poison, weapons, and the like. In such cases, given that a counteraccusation is possible, he may bring a counteraccusation against the plaintiff even before the suit filed by the latter has been disposed of.

Is it not true that even here, given that the counteraccusation has the character of another plaint, because it does not constitute a plea insofar as it fails to quash the plaint, the impossibility of having two simultaneous court proceedings remains the same?

That is true, but here the counteraccusation is presented not to have simultaneous court proceedings. On the contrary, it is for the purpose of obtaining a lesser punishment or preventing a greater punishment. So, for example, when there is a suit: “This man beat me” or “This man cursed me,” and there is a counteraccusation: “He beat me first” or “He cursed me first,” the punishment is lessened. Accordingly, Narada states:

The man who first throws an insult, however, is certainly guilty. The one who does the same afterward has also committed an offense, but a heavier punishment is meted out to the one who did it first. (NSm 15.10)

When, on the other hand, two people do something simultaneously, like beating each other, then there is no room for a greater punishment:

When an assault or an act of violence has started simultaneously and no special circumstances are perceived, the same punishment is meted out to both. (NSm 15.9)

Thus, even though it is not possible to conduct simultaneous court proceedings, in cases of altercation and the like a counteraccusation is meaningful, while it is meaningless in cases involving the nonpayment of debts and the like.

3

In case someone denies a written plaint containing several parts and and the plaint is later proven with regard to one of its parts, the king should make him pay the entire claim; he may not, however, recover a claim not recorded in the plaint. (YDh 2.20)

….

This, moreover, is not just a text-based rule, because when it is determined that a defendant has lied with respect to one element of the plaint, the assumption is that he may have lied also with respect to another element. Thus, because of this very text of Yogisvara (Yajnavalkya) supported by the notion of assumption, which is another name for logical reasoning, the verdict is that the king should force him to pay the entire claim. Likewise, moreover, when a verdict is reached by following logical reasoning and the text, no fault accrues to those who conducted the court proceedings even when the actual facts turn out to be different. Accordingly, Gautama, after stating, “Logical reasoning is the means of arriving at a correct decision. Having analyzed by that means, he should decide equitably,” sums up: “Therefore, the king and the teacher are not to be blamed” (GDh 11.23–24, 32). Furthermore, what is understood here is not simply that when a defendant has been made to admit one element of the plaint, his words are not to be trusted, because of the statement: “the plaint is later proven with regard to one of its parts; the king should make him pay the entire claim.”

With respect to Katyayana’s statement—

Even in an accusation consisting of several points, as much as the creditor proves by means of witnesses, only that much money—what he has proved—does he receive. (KātSm 473)

—it refers only to debts incurred by a father or a similar person that have to be paid by his son and the like. For in such a situation, when someone like a son is sued with respect to many items and he answers, “I do not know,” he does not become a litigant entering a plea of denial. Therefore, even when he is made to admit one element of the plaint, he cannot be viewed as a total liar. Consequently, the rule “In case someone denies a written plaint” does not apply to such a case. This is because there is no denial and an expectation of logical reasoning is lacking.¹⁹ Katyayana’s statement beginning with “Even in an accusation consisting of several points,” however, has a general scope that, after excluding a plea of denial falling within the scope of a restrictive text,²⁰ pertains to a plea of ignorance.

Is it not true that in the following text Katyayana states that in an accusation consisting of several points, when witnesses attest to either one part of the plaint or to more than what is stated in the plaint, then the entire plaint remains unproven?

In lawsuits pertaining to debts and so forth, which, for the most part, are clear-cut,²¹ when the witnesses attest to a smaller or a larger amount, the charge is not proven indisputably. (KātSm 396)

That being the case, how is it that when one portion is proven the unproven portion also becomes established?

We respond. The meaning of this text is as follows. When witnesses listed as providing the means of proof for the entire plaint that has been written down attest either to one portion of the plaint or to something more than what is in the plaint, then the entire charge remains unproven. Even in this case, because of the words “is not proven indisputably,” a doubt, indeed, persists as before. Hence, there is room for other kinds of proof because of the restrictive rule: “Discarding subterfuge” (YDh 2.19). In a case involving violence and the like, however, when witnesses listed as providing the means of proof for the entire charge prove even one portion of the charge, then the entire charge is, indeed, taken as proven, (i) because, by just that much, cases involving violence and the like are proven; and (ii) because of the following text of Katyayana:

In cases of adultery, violence, and theft, when witnesses attest to one portion of the charge to be proved, the entire charge is taken as proven. (KātSm 397)

4

It was stated above: “Immediately thereafter, the plaintiff should have the evidence he will use to prove what is alleged in his plaint written down” (YDh 2.7cd). Anticipating the question: “What is its means of proof?” he states:

Document, enjoyment, and witnesses, it is declared, constitute evidence; and, in the absence of any one of these, one of the ordeals. (YDh 2.22)

….

Evidence is of two kinds: human and divine. Of these, human evidence is of three kinds: document, enjoyment, and witnesses…. Of these, document is of two kinds: decree and legal paper….

Surely it is legitimate to consider a document and witnesses as evidence, because, given that they both disclose words, they fall within the scope of verbal evidence. But how can enjoyment be considered evidence?

We respond. Enjoyment also, when it is provided with certain kinds of qualifications, indeed constitutes evidence, because it falls within the scope of inference or circumstantial inference. The reason for this is that such enjoyment, on the basis of its invariable concomitance, makes one either infer a cause such as purchase that gives rise to ownership or, if that is not possible, assume such a cause.

When even one of these three, documents and so forth, is unavailable, one of the ordeals, whose nature and classifications will be given below, is said to be evidence taking into account the caste, region, time, article, and the like.

From the above statement alone, one gathers that ordeal becomes evidence only when human evidence is unavailable, because the nature and authority of ordeals are gathered only from scriptural texts. And therefore, when two people, arguing with each other, come before a judge at the same time, the one depending on human evidence and the other on divine, it is the human evidence that should be accepted. Accordingly, Katyayana states:

If one party presents human evidence and the other party divine evidence, the king should accept the human evidence and not the divine. (KātSm 218)

Even when human evidence is available only with regard to one central portion of the plaint, there too one should not resort to divine evidence. Take, for example, the plaint: “This man borrowed one hundred rupee coins on interest and does not return them.” In response to a plea of denial, the plaintiff says: “I have witnesses for the fact that he borrowed, but not for the amount and the particular rate of interest. Therefore, I will prove my case through an ordeal.” In such a case, there is no room for an ordeal, because, according to the maxim of proving one portion of the plaint,²² the amount and the particular rate of interest also are thereby proved. Katyayana also states:

When men are engaged in a dispute, one should accept the human evidence, even though it may cover only one portion of the plaint, and not divine evidence even if it covers the whole plaint. (KātSm 219)

With regard to the statement: “For those accused of violent crimes committed in secret, investigation through ordeals is proper” (KātSm 230), that too is meant as a restrictive rule applicable when human evidence is lacking. Also with regard to Narada’s statement:

In the wilderness, in an uninhabited place, at night, inside a house, in the case of violence, and when one denies having received a deposit—in such cases²³ a divine mode of proof is legitimate. (NSm Mā 2.30)

—this also refers to a situation when human evidence is not available.

Therefore, the general rule is that a verdict should be based on an ordeal only when human evidence is not available. We also see an exception to this:

When litigation has been initiated with respect to a violent crime or verbal or physical assault, or in court cases arising from the use of force, the method of proof is witnesses or²⁴ ordeal. (KātSm 229)

Likewise, in the case of documents and the like also we find a restrictive rule given in some sources, such as:

When something is said to be a bylaw of an association, guild, company, and the like, the means of proving that is a document, not an ordeal or witnesses. (KātSm 225)

Likewise:

The evidence in cases relating to the construction and extent²⁵ of gateways and paths, and to waterways and the like, enjoyment alone is the stronger evidence, not documents or witnesses. (KātSm 226)

And:

Not giving what one promised to give, decisions relating to masters and servants, those relating to not delivering an article after it has been purchased, not paying the money after purchasing, gambling, and betting—when a dispute has arisen with regard to these, the means of proof is said to be witnesses, not an ordeal or a document. (KātSm 227–28)

When evidence is available to both sides and there is no criterion within the evidence to determine what is stronger and what is weaker, there arises the question: between the earlier and the later evidence, which is stronger? Therefore, he says:

In all cases involving property, evidence relating to a later transaction has greater force. (YDh 2.23ab)

“In all cases involving property,” that is, those relating to debts and the like, the evidence relating to a later transaction has greater force. When the evidence relating to a later transaction has been confirmed, the litigant presenting it wins, whereas, even if the evidence relating to an earlier transaction has been confirmed, the litigant presenting it is defeated. Here is an example. One person proves that another owes something by demonstrating that he took it. The other person proves that he does not owe it by demonstrating that he returned it. Here, as the taking and the returning have been proven through evidence, given that returning is stronger, the litigant who states that he returned wins. Likewise, a man, after first taking a loan at 2 percent interest, at a later time agrees to an interest rate of 3 percent. In this case, even though there is evidence for both, the acceptance of the 3 percent rate has greater force. This is because the later transaction has been proven, and because the earlier transaction, by the fact that it is annulled, does not come into force. It is also said: “By the fact that it is annulled, the earlier transaction does not come into force, and that fact will establish the validity of the later transaction.”²⁶

He presents an exception:

in the case of a pledge, gift, or purchase, however, evidence relating to an earlier transaction has greater force. (YDh 2.23cd)

In the three beginning with pledge, it is the evidence relating to an earlier transaction that has greater force. Here is an example. A man gives a field to one person as a pledge and receives some amount. He then pledges the same field again to another person and receives some amount. In this case, the field belongs only to the earlier person and not to the later. The same is true in the case of a gift or a purchase.

Is it not true that, because one loses ownership over an article the moment it is given as a pledge, it is clearly impossible for it to be given again as a pledge? Likewise, it is impossible to give or to buy what has already been given or bought. Therefore, this statement is meaningless.

We respond. Even in the absence of ownership, if through delusion or greed someone gives it again as a pledge and the like, then evidence relating to the earlier transaction has greater force. It is solely on this legal reasoning that this statement is based. No criticism, therefore, can be directed against it.

He will point out that enjoyment accompanied by certain attributes is authoritative. By doing so, he states that some kinds of enjoyment require other modes of evidence.

When a man looks on without speaking up while his land is being enjoyed by someone else, he loses his title to it in twenty years; in the case of movable property, in ten years. (YDh 2.24)

When a man looks on without speaking up—that is, without protesting: “This land is mine. You should not enjoy it”—while his land or movable property is being enjoyed by someone else who is unrelated to him, he suffers the loss of that land after twenty years, the loss being caused by twenty years of undisputed enjoyment. The loss of movable property, such as an elephant or horse, however, happens after ten years.

Surely this is improper. For ownership does not cease due to a lack of protest, because the notion that the absence of protest causes the cessation of ownership in the same way as gifting, sale, and the like is not found either in the world or in textual sources. Furthermore, ownership is not created by enjoyment for twenty years. The reason for this is as follows. Enjoyment is a means of knowledge relating to ownership, and a means of knowledge does not produce what is to be known. Further, this provision is not listed among the causes that create ownership, such as inheritance and purchase.²⁷ Accordingly, in the following passage, Gautama lists only eight causes that create ownership, but not enjoyment: “One becomes an owner through inheritance, purchase, partition, possession,²⁸ and discovery; additionally, acceptance for a Brahman, conquest for a Kshatriya, and wages for a Vaishya and a Shudra” (GDh 10.39–42).

It is not correct, further, to say that this very statement teaches that enjoyment for twenty years is the cause that generates ownership. This is because ownership and causes of ownership are not to be learned just from textual sources, since they are well known in the world. And this will be dealt with more fully in the topic of partition. Gautama’s statement, however, is meant to provide a restrictive rule.²⁹

Furthermore, the following statement contradicts the view that enjoyment without title causes ownership:

When, however, someone enjoys even for many hundreds of years a property to which he has no title, the king should punish that evil man with the punishment ordained for a thief. (NSm 1.76*; Jolly 1889: 1.87)

And it is not correct to say that the statement “When, however, someone enjoys” refers to enjoyment done outside the presence of the owner, while the statement “When a man looks on without speaking up” refers to enjoyment done in his presence. The reasons for this are: (i) the statement “When, however, someone enjoys” is made without qualification; (ii) Katyayana’s statement: “In the case of farm animals, women, men, and the like, the man who seized them or his son should not place evidentiary import on enjoyment: that is the settled dharma” (KātSm 316); (iii) in the case of enjoyment in the presence of the owner, loss is impossible, given the lack of a cause for that loss.

And one should not reason in the following manner. In the case of pledges, gifts, and purchases, evidence relating to an earlier transaction has greater force. Therefore, as an exception to this rule, the current text declares that evidence relating to an earlier transaction has greater force when that evidence is connected, in the context of land, with twenty years of enjoyment and, in the context of movable property, with ten years of enjoyment. This is because in the case of these the very evidence relating to earlier transactions is in reality impossible, for only things that one owns can be pledged, given, or sold. And one does not have ownership of what has been pledged, given, or sold. A text of recollection, moreover, enjoins punishment for giving or selling anything that one does not own:

The man who accepts what should not be given and the man who gives what should not be given, both should be punished like thieves, and they should be made to pay the highest seizure fine.³⁰

Likewise, if this verse contained an exception to the three beginning with pledge, then it would be impossible for the next verse (YDh 2.25) to present an exception to this verse in the case of pledges, boundaries, and the like.

Therefore, the loss of land and the like is totally unwarranted. Nor is there a loss of the lawsuit. For this reason, Narada has declared that the loss of the lawsuit is created by the absence of reasons for indifference and not by the absence of the property:³¹

When the time given above³² has elapsed, a lawsuit brought by someone who has shown indifference and has stood there silently will not succeed. (NSm 1.71)

Likewise, Manu also has shown that the loss comes about through a judicial proceeding and not factually:

If something is enjoyed within his own locality and he is neither mentally incapacitated nor a minor, he loses through a judicial proceeding; the one who enjoys it is entitled to that property. (MDh 8.148)

The loss through a judicial proceeding is as follows. The one who is enjoying will say, “This man is not mentally incapacitated or a minor, i.e., a child. In his presence I enjoyed this for twenty years without objection. With regard to this, there are numerous witnesses. If I was enjoying illegally what he owned, then why did he remain indifferent for this amount of time?” And to this, that man will not be able to present a reply. Even so, a judicial proceeding based on facts will, without doubt, take place, because of the rule: “Discarding subterfuge, the king should conduct judicial proceedings in accordance with the facts” (YDh 2.19).

Now, there is this view. Even though there is neither the loss of property nor the loss of the lawsuit, nevertheless, when someone sees but does not protest, there is a danger of the loss of the lawsuit. Consequently, to prevent this he teaches that one should not remain silent.

This is also not true, because enjoyment during the time given in this text of recollection does not create a danger of loss. If the intention was to point out that one must not remain silent for a particular length of time, then the mention of twenty years would be unintended.

Now, it may be argued that twenty years is mentioned in order to remove objections arising from any flaw in a document. Accordingly, Katyayana states:

When a property of a competent person is enjoyed in his presence on the strength of a document, after the lapse of twenty years that document becomes free of any flaw. (KātSm 299)

That also is not true, because that would make the exception with regard to pledges, boundaries, and the like (YDh 2.25) inapplicable, given that the removal of objections arising from any flaw in a document after twenty years applies equally in the case of pledges and the like. Accordingly, Katyayana states:

Now, when a pledge has been indisputably enjoyed for twenty years, that pledge is established as valid by reason of that document, freed of any documentary flaws. (KātSm 300)

Likewise:

When a decision is reached in a dispute over a boundary, the law requires a document defining the boundary to be executed. Any flaw in that document should be disclosed until twenty years have elapsed. (KātSm 301)

This also refutes the statement: “in the case of movable property, in ten years” (YDh 2.24d).

Therefore, a legally sound³³ meaning of this verse must be presented.

To this we respond. What is intended in this verse is the loss of product, not the loss of the property, not even the loss of the lawsuit. So, for instance, even though the owner gets back the field legally after it has been enjoyed for twenty years without protest, nevertheless he does not get to recoup its products. This is because of his own fault in failing to protest, and because of this text. He does get to recoup the products even after twenty years, however, when it is enjoyed out of his sight, because the text says: “When a man looks on,” and also when it is enjoyed in his presence and in spite of his protest, because the text says: “without speaking up.” If it is before twenty years, he gets to recoup the products even if they were enjoyed in his presence and without protest, because the text mentions twenty.

Surely, because ownership extends also to the products generated from the property, it is clearly improper for there to be a loss of the products.

We agree—if the product remains in its original condition insofar as the thing itself is not destroyed, for example, an areca nut palm, jackfruit tree, and the like grown on the property.³⁴ When, however, what it produced has been destroyed by its enjoyment, then ownership is destroyed by the very fact that the thing itself has been destroyed.

When, however, someone enjoys even for many hundreds of years a property to which he has no title, the king should punish that evil man with the punishment ordained for a thief. (NSm 1.76*; Jolly 1889: 1.87)

The conclusion arrived at by this text is that, after calculating how much it would have fetched if sold, he should pay an equivalent amount, like a thief. To this conclusion, an exception is made in the text: “he loses his title to the land in twenty years” (YDh 2.24b). The punishment by the king, however, remains in effect even after twenty years, because the enjoyment was carried out without title, and because we find no exception to this mentioned.

Therefore, it is established that after the lapse of twenty years the owner does not obtain a product that has been destroyed, both because of the owner’s own fault in remaining indifferent and because of this text. This also explains the provision: “in the case of movable property, in ten years.”

He gives an exception to the above rule:

—with the exception of a pledge, a boundary, an open deposit, and the property of the mentally incompetent and children, as well as a sealed deposit, and the property of the king, women, and Vedic scholars. (YDh 2.25)

….

In the case of a pledge and so forth, no loss of the increase takes place even when someone “looks on without speaking” for over twenty years in the case of land and for over ten years in the case of movable property. This is because the above kind of fault committed by the man is absent, and because in each case it is possible to identify a reason for his indifference. So, for example, in the case of a pledge, the man commits no fault even when he remains indifferent, given that the enjoyment of the pledge is an essential attribute derived from the very nature of a pledge. In the case of a boundary, showing indifference is appropriate because a boundary can be easily ascertained by means of markers such as husks, charcoal, and the like laid down long ago. In the case of an open deposit and a sealed deposit, showing indifference is appropriate because its enjoyment is prohibited, and because, in the event it is enjoyed in contravention of the prohibition, he will get the product along with interest. Showing indifference is quite proper in the case of the mentally incompetent and children, simply because of the fact that they are mentally incompetent and children; in the case of the king, because he is preoccupied with numerous obligations; and in the case of women, because of ignorance and diffidence. In the case of Vedic scholars, showing indifference is quite proper because they are preoccupied with studying and teaching the Vedas, investigating their meaning, and putting them into practice.

Therefore, in the case of a pledge and so forth, there is never a loss of product when it is enjoyed within sight and without protest, because in every case one can identify a reason for showing indifference.

5

It has been established that, when a litigant in a lawsuit dies before a verdict has been rendered, the lawsuit does not come to an end. Even when a verdict has been rendered in a lawsuit and the litigant is alive, sometimes the lawsuit continues and sometimes it does not. To establish the legal principle with respect to this, he states the relative power of those who try lawsuits.

Officials appointed by the king, and associations, guilds, and families—of these, each preceding one should be recognized as having greater authority with respect to legal proceedings among men. (YDh 2.30)

….

This is what is being said. When officials appointed by the king have rendered a verdict in a lawsuit, even if the defeated party is dissatisfied, believing that the case was judged wrongly, nevertheless he cannot have that lawsuit retried in an association and so forth. Likewise, also when an association has rendered a verdict, there is no appeal to a guild and so forth. Similarly, when a guild has rendered a verdict, there is no appeal to a family. On the other hand, when a family has rendered a verdict, an appeal to a guild and so forth is possible. When a guild has rendered a verdict, an appeal to an association and so forth is possible. And when an association has rendered a verdict, an appeal to officials appointed by the king is possible.

Narada, furthermore, states that even when officials appointed by the king have rendered a verdict in a lawsuit, it is possible to appeal to the king:

Families, guilds, companies, an appointed official, and the king are the venues for judicial proceedings; each following one has greater authority than the preceding. (NSm Mā 1.7)

In this kind of appeal to the king, furthermore, pertaining to a case with a wager where a verdict was rendered by previous assessors, if the man claiming that his case was judged wrongly loses his case before the king assisted by other assessors, then he should be punished. If he wins, however, the appointed assessors should be punished.

13.2 DEVANNA BHATTA

(See headnote to ch. 8.3.)

Devanna Bhatta’s analysis of legal procedure (vyavahāra) is long and detailed, running to 773 pages in Srinivasacharya’s edition. His scholarly interest—and perhaps his personal and practical concern, if he was a judge or jurist—in matters of law and legal process are palpably evident. As already noted, Devanna was the most accomplished writer of legal digests (nibandha) during the medieval period.

In this section I have selected some of the most salient parts of Devanna’s text on legal procedure, covering the major aspects from the initial filing of the charges to the verdict and the appeal process (#3–10), as well as the more theoretical issues relating to the very nature of a lawsuit and its classification (#1–2). One long portion I have omitted deals with the three kinds of evidence: documents, witnesses, and ordeals. Some of this material has already been given in the previous chapters, and Devanna’s discussion of them is far too long to be included here.

This is perhaps the most detailed analysis of three central steps in court procedure: plaint, plea, and the determination of the party with the burden of proof. A brief comparison of Devanna’s section on the plaint with those of two other major legal digests, the Kṛtyakalpataru of Laksmidhara (twelfth century C.E.), the earliest digest available to us, and the digest specifically on legal procedure, Vyavahāracintāmaṇi of Vacaspati Misra (fifteenth century C.E.) is, at least anecdotally, revealing. Devanna cites 61 verses from legal codes and has 112 lines of comments and analysis. Compare that to Laksmidhara, who cites 32 verses and has just 47 lines of commentary, consisting mostly of glosses on words, and to Vacaspati Misra, who cites 28 verses and provides 31 lines of commentary. The same pattern is true in the analyses of other areas of legal procedure. Devanna Bhatta’s Moonlight of Texts of Recollection (Smṛticandrikā), then, is the most complete analysis of legal procedure ever produced in ancient or medieval India.

1. The Nature of Lawsuit and Legal Procedure

[Vyavahārakāṇḍa, pp. 1–3]

At the outset, we describe the nature of a legal procedure.³⁵ On this, Brihaspati states:

In the beginning, men were staunchly committed to dharma and refrained from causing injury. Lawsuits have been declared for those who are under the sway of greed and hatred. (BṛSm 1.1.1)

The meaning of this has been elucidated by Narada:

When men were totally fixed on dharma and spoke the truth, there were no lawsuits, and no hatred or envy. Once dharma vanished, lawsuits were proclaimed for men. (NSm Mā 1.1–2)

The meaning is that “lawsuits,” namely, disputes relating to such matters as the nonpayment of debts, “were proclaimed for men.” Katyayana, likewise, states:

When what is called dharma, which can only be established with effort, has been violated and fullness of legal reasoning takes effect, the dispute that is grounded on the plaint that needs to be established is called a lawsuit. (KātSm 25)

This is its meaning.³⁶ Once the category called dharma—which can only be established with effort consisting of telling the truth, not causing injury, steadfastness, and the like—has been violated through greed, hatred, and the like, when the full unfolding of the legal reasoning is made in cases such as the nonpayment of a debt in order to secure the payment, and in cases such as corporate dharma in order to prevent rival dharmas, a dispute among men grounded on the plaint that needs to be established is called “lawsuit.” For this very reason, Harita states:

Where the securing of one’s property and the prevention of rival dharmas is done through legal reasoning, it is called “lawsuit.”

The meaning is that a dispute relating to the denial with respect to property and a dispute among ascetic sects about their respective corporate dharma also is a lawsuit. One should not, however, assume that disputes relating to theft, assault, and so forth do not constitute lawsuits. For this reason, Yajnavalkya states:

If someone who has suffered an injury at the hands of others in a manner contrary to texts of recollection or normative practice reports it to the king, it becomes a subject of litigation. (YDh 2.5)

Katyayana also states:

If a teacher beats a pupil in anger with something other than a cane and inflicting severe pain, the pupil’s father may initiate litigation on behalf of the pupil. (KātSm 794)

Brihaspati also states:

If an employer pays his employees wages for the work they are doing, and the employees fail to do the work, then litigation may ensue. If someone causes injury or fails to give what should be given, these are two occasions for litigation; the paths these two take are manifold. (BṛSm 1.1.2–3)

Usanas also states:

Whenever someone reports to the king some matter in the context of a lawsuit, that is declared to be a subject of litigation, a subject that is of eighteen kinds.

In this manner, one should understand that the essential meaning of the statements of Yajnavalkya and others is as follows: a litigation whose topic is any one of the eighteen kinds of topics is a lawsuit. For this very reason, Narada states:

Nonpayment of debts, sealed deposits, partnership, resumption of a gift, breach of contract for service, nonpayment of wages, sale without ownership, nondelivery after a sale, cancellation of a purchase, nonobservance of conventions, land disputes, relations between a man and woman, partition of inheritance, violence, verbal assault, physical assault, gambling, and miscellaneous—these, texts of recollection declare, are the eighteen feet. (NSm Mā 1.16–19)

The meaning is: a lawsuit is said to be one whose topic is any one of the eighteen topics beginning with nonpayment of debts. One should not argue, moreover, that the statement “these are said to be the eighteen subjects” stands contradicted because of the statement in texts of recollection on lawsuits relating to other subjects such as open deposits. For this very reason, Narada himself states:

Another subdivision of these same, texts of recollection declare, amounts to one hundred and eight. Because the legal cases³⁷ of human beings vary widely, it is said to have one hundred branches. (NSm Mā 1.20)

Katyayana also states:

They are divided into eight thousand because of the division of the eighteen kinds of cases. (KātSm 29)

“Because of the division of…cases” means “because of the division of plaints.” By necessary implication, this states that lawsuits are also divided into eight thousand. The statements “one hundred and eight” and “eight thousand” do not contradict each other because they are aimed at teaching that there are numerous kinds of legal procedures.

2. Classifications of Lawsuits

[Vyavahārakāṇḍa, pp. 20–29]

We have already stated that lawsuits are manifold on the basis of the difference of topics that are part of their very constitution. Now we present the classification of the same lawsuits based on a wager and the like. In this connection, Yajnavalkya states:

If the litigation includes a wager, however, then the defeated party must be made to pay. (YDh 2.18)

A wager is the money put up through pride, saying: “If I am defeated, I will give this much to the king.” The use of the term “If” indicates also litigation without a wager. Thus lawsuits are of two kinds. Accordingly, Narada states:

One should know that there are two kinds of lawsuits: with an additional wager and without an additional wager. Where there is an extra wager stipulated in writing, it is one with an additional wager. (NSm Mā 1.4)

The meaning is this. When in a lawsuit, before the writing down of the plaint, both parties—or one of them—agree to a wager in addition to the fine, it is a lawsuit with an additional wager. Narada gives other classifications as well:

A legal procedure, it is said, has four feet, four bases, and four means, benefits four, extends to four, and produces four. It has eight limbs, eighteen feet, one hundred branches, three wombs, two kinds of accusation, two gates, and two paths. (NSm Mā 1.8–9)

Narada himself explains these varieties:

Dharma, legal procedure, custom, and king’s decree—these are the four feet of legal procedure, the subsequent ones annulling the prior ones.³⁸ (NSm Mā 1.10)

Surely, is it not true that it is plaint, plea, evidence, and verdict that constitute the feet of legal procedure and not dharma and so forth? So what is the reason for this statement?

We respond. The foot consisting of the verdict is of four kinds, depending on whether it is in accordance with dharma and so forth. Here the verdict is called by that term in accordance with which it was rendered. Therefore, it is indeed proper to describe it as consisting of four feet also in terms of dharma and so forth. Accordingly, Brihaspati states:

A verdict in a doubtful case is said to be of four kinds: based on dharma, legal procedure, custom, and king’s order. (BṛSm 1.1.18)

Katyayana gives the characteristics of all four kinds of verdicts:

In a legal dispute where the perpetrator of the offense acknowledges his authorship and the owner of the property receives his property, the verdict is based solely on dharma. (KātSm 35)

“Offense” is causing injury and the like. “Authorship” means he committed it.

When some text of recollection is presented by those implementing dharma³⁹ for the purpose of arriving at a verdict in lawsuits, it is said to be legal procedure. (KātSm 36)

The meaning is this. A verdict arrived at by following the plaint, plea, and so forth described in the treatises on dharma is called legal procedure.

When a person practices something, whether it is dharma or adharma, because it is invariably practiced in his region, it is called custom. (KātSm 37)

The meaning is this. Given that he follows that custom, the verdict is called by the same appellation.

When the king establishes a dharma that is not in conflict with treatises on law or with the usages of the region, it is a legal decree of the king. (KātSm 38)

The meaning of this is as follows. A verdict not in conflict with other authoritative sources and determined just by the king’s deliberation is called king’s decree. Here, Brihaspati states that each of these varieties is again twofold:

Wise men have stated that each is of two kinds based on the differences of evidence. (BṛSm 1.9.2)

The two kinds are also explained by Brihaspati himself:

A verdict arrived at after properly investigating a lawsuit that has been scrutinized through reasoning and examined through oaths should be known as one based on dharma. When the defendant confesses, it is a verdict based on dharma, or when a person has been tested properly through ordeals: this is stated to be the second type. (BṛSm 1.9.3–4)

The meaning is this. A verdict arrived at by the pursuit of truth is the first type of verdict based on dharma. Without the pursuit of truth, a verdict arrived at by a plea of admission or by the authority of an ordeal is the second type.

A verdict determined on the basis of evidence, however, is said to be one based on legal procedure. When it results from verbal trickery or an invalid plea, it is said to be the second type. (BṛSm 1.9.5)

The evidence intended here is the human, because a verdict based on ordeals is included with the category of verdicts based on dharma.

A verdict arrived at through inference is said to be one based on custom. Experts in the science state that one arrived at according to the fixed practice of a region is the second type. (BṛSm 1.9.6)

Inference consists of a sign such as having a firebrand in the hand.⁴⁰

A verdict arrived at without evidence is said to be one based on the king’s order. The other type is said to be when it does not conflict with the norms of authoritative treatises. (BṛSm 1.9)

Vyasa has explained in detail the meaning of the phrase “without evidence”:

Document, witnesses, and enjoyment are said to be the three kinds of evidence. Wise men take inference and logical reasoning to be the cause.

The fixed practice of a region established long ago is called custom. Truth, balance, and so forth, texts of recollection state, are oaths corresponding to the lawsuit.

In the absence of these, however, wise men state that the king’s order constitutes the verdict.

Is it then not true that Narada’s statement, “the subsequent ones annulling the prior ones,” becomes incoherent, (i) because, given that each preceding kind of verdict more closely corresponds to the truth, it is the prior ones that annul the succeeding ones; and (ii) because Yajnavalkya has stated: “Discarding subterfuge, the king should conduct judicial proceedings in accordance with the facts”? (YDh 2.19)

We respond. That is true, and as a general rule it is so everywhere. In some particular cases, however, it does happen that the subsequent ones annul the prior ones. Narada’s statement applies to such cases. Here are examples. A certain eminent man, such as a man of royal birth, through folly in some way engages in an activity such as touching the king’s wife or the like. And after doing it he enters a plea of denial out of fear for his life. There are also witnesses. They too, when questioned by the king, fearing that the man would be put to death, give false testimony: “He did not commit this act.” When something like this happens, the guilt of the man who committed the crime is not established. Consequently, here dharma is annulled by legal procedure. And it is proper that dharma is annulled here, because witnesses are enjoined to speak an untruth in the statement: “One may clearly give false testimony in a case where a person of an upper class is subject to execution” (YDh 2.83).

On the other hand, a man, such as an Abhira, is accused by some person: “This man has committed adultery with another man’s wife, and there are witnesses,” and he responds: “What the witnesses have said is true. Nevertheless, I should not be punished, because I did this on the strength of custom. And the king has recorded this in the book.”⁴¹ When something like this happens, legal procedure is annulled by custom, because the punishment stipulated by legal procedure is annulled by means of custom. And in this case it is proper that it be annulled by custom, because of the statement:

A lawsuit between individuals belonging to a village, a settlement of cow herders, a city, a guild, a caravan, or an army should be decided according to custom: so says Brihaspati.⁴²

Custom also in some cases is annulled by an order of the king. A custom of this sort has been created: “No official of the king should enter the interior of a family’s house.” Then the king finds out that a certain lawbreaker has entered a house. The king then orders an official of his: “You should bring that criminal even by entering the interior of the house.” In this case, even custom is annulled by a king’s decree. This is because a king’s decree has greater force than a custom, given the necessity of apprehending criminals. Having just this kind of issue in mind, Brihaspati also says:

Where a verdict is reached based solely on an authoritative text, it is called one based on legal procedure; dharma is superseded by it.

When a verdict is reached based on the fixed practice of the region or on inference, or following the opinion of tradesmen, it annuls legal procedure.

When the king, discarding established practice, renders a verdict, that is the king’s order. It annuls custom. (BṛSm 1.1.19–21)

We now pick up the thread of the original discussion.⁴³ In order to explain the four bases,⁴⁴ he states:

Of these, dharma is based on truth, legal procedure on witnesses, custom on what is recorded in books, and decree is the king’s order. (NSm Mā 1.11)

The term “witnesses” is used as a synechdoche for the kinds of evidence distinct from ordeals given in the treatises on dharma. “Books” refers to documents. He gives the four means:

It is said to have four means because it is to be achieved by the expedients beginning with conciliation.⁴⁵ (NSm Mā 1.12)

Because, when a plaintiff and defendant are in disagreement, the resolution takes place by expedients such as conciliation—that is what is intended. He gives the four that it benefits:

Because it protects the four orders of life, it benefits four. (NSm Mā 1.12)

“Four orders of life” is meant to indicate also the social classes. He give the four to whom it extends:

It is said to extend to four because it extends in quarters to the perpetrators, witnesses, assessors, and the king. (NSm Mā 1.13)

The meaning is that, depending on whether it is adjudicated properly or improperly, the resulting dharma or adharma extends in quarters to the perpetrator and others.⁴⁶ He gives the four that it produces:

Because it produces these four: dharma, success, fame, and attachment of the people, it is said to produce four. (NSm Mā 1.14)

Attachment of the people refers to the affection of the people. He gives the eight limbs:

The king along with his officials, assessors, authoritative treatise, accountant, scribe, gold, fire, and water are said to be its eight limbs. (NSm Mā 1.15)

We will explain later on, however, the use of these. The explanation of the eighteen subjects and one hundred branches dealt with in the previous two sections should be reviewed here. He gives its three wombs:

Because it originates from lust, hatred, and greed, it is said to have three wombs. These three generate legal disputes. (NSm Mā 1.21)

“As appropriate in each case” should complete the statement.⁴⁷ He gives the two kinds of accusations:

A lawsuit, however, should be recognized to have two kinds of accusations, in terms of an accusation based on suspicion and an accusation based on fact. (NSm Mā 1.22ab)

He gives examples of these:

Suspicion, however, comes from association with bad people, and fact from finding such things as stolen goods. (NSm Mā 1.22cd)

Through association with bad people such as gamblers and thieves, suspicion of theft and the like falls even on a good man. “Finding such things as stolen goods” refers to the recognition of an evidentiary sign such as a portion of what was stolen or to directly seeing them. Association with bad people is given simply as an example, because it is possible to entertain a suspicion with regard to a deposit and the like when there is an association with even rich people who are good. Therefore, the above is not a definition of an accusation based on suspicion. He gives its two gates:

Because it is connected with two sides, it is said to have two gates. Of these, the initial charge is one side, and the plea to it is the opposing side. (NSm Mā 1.23)

“Gate” means the process of commencing the lawsuit. He gives the two paths:

Because it follows fact or subterfuge, it is said to have two paths. What is based on truth is fact, while what is stated erroneously is subterfuge. (NSm Mā 1.24)

Harita also gives some classifications:

It has one root, two origins, two trunks, and two fruits.

Katyayana, however, explains these:

What the plaintiff has reported is the root of the case to be proven. Not giving what has to be given and injury are said to be the two origins. The treatise on dharma and the treatise on political science are said to be the two trunks. The two fruits are said to be victory and defeat. (KātSm 30, 32)

Another classification, likewise, has been given by Katyayana himself:

Plaint, plea, deliberation, the foot consisting of evidence: thus it has been said to have four feet. (KātSm 31)

“Deliberation” refers to the consideration by the judge and others regarding the person on whom the legal burden of presenting evidence falls, when the two parties are continuing their dispute even after the plea has been accepted. Evidence consists of means of proof such as documents; presenting it constitutes the foot consisting of evidence. Insofar as they form part of the concluding section of the legal procedure that includes the dispute, burden of proof and evidence also form part of legal procedure. This is the reason for the statement: “it has been said to have four feet.”

For the very same reason, the author of the Saṃgraha states that the concluding section also is part of legal procedure:

When human beings engage in disputes pertaining to their interests, the legal disposition based on statements is said to be legal procedure.⁴⁸

Some argue that “deliberation” is the consideration resulting in a verdict of victory or defeat after the presentation of evidence, a consideration that removes doubts about whether the evidence was fallacious.⁴⁹ In this view, what is intended to be stated is only the number of feet and not their sequence, because here the foot consisting of deliberation becomes the fourth.

With regard to what is stated by Yajnavalkya, however:

If that is successful, he obtains success; the opposite, if it is otherwise. (YDh 2.8)

—here also, the term “success” denotes deliberation that results in success. It does not, however, consist of the determination of victory or defeat, because that is present even in a plea of admission, and because it would result in contradicting the text: “In cases of admission, it has two feet” (KātSm 245). Therefore, the statement of Yajnavalkya has exactly the same meaning as that statement of Katyayana.

Others, however, explain this statement as having the same meaning as this statement in a text of recollection:

Plaint, plea, evidence, and proving what has to be proven—when with these following sequentially it is cast in four parts, it is said to have four feet. (DhKo I: 18)

They also maintain, however, that this does not conflict with the statement: “In cases of admission, it has two feet,” given that the foot consisting of proving what has to be proved is lacking because in a plea of admission the means of proof is not indicated and what is alleged in the plaint does not have to be proved. In the context of this view, a text of recollection points out also the sequence of the feet:

There, however, the first foot is the plaint; the second is the plea; the next foot is evidence; and the fourth is said to be the verdict. (DhKo I: 18)

3. Venues for Trials

[Vyavahārakāṇḍa, pp. 29–42]

On this point, Brihaspati states:

Although one, legal procedure has been presented, however, as manifold by the wise. The one who renders the verdict there is the king and a Brahman who is learned. (BṛSm 1.1.67)

The Brahman has the title of judge.⁵⁰ Accordingly, Brihaspati himself states:

He is the judge (prāḍvivāka) because he asks questions and counterquestions, and because he speaks at the outset and affectionately.⁵¹ (BṛSm 1.1.69)

The term prāḍ comes from the fact that he questions the plaintiff and the defendant. The term vivāka comes from the fact that he especially pronounces the verdict. The meaning is that his title is derived etymologically.⁵²

Narada also, while explaining how the Brahman should be learned, elucidates this title through another method:

Who knows well the eighteen subjects, who grasps their eight thousand subdivisions, who is an expert in disciplines such as critical thinking, and who has mastered the Vedic texts and texts of recollection—because he examines (pṛcchati) the dharma relating to the dispute and investigates (vivecayati) the issue under consideration, he is said to be the judge (prāḍvivāka). (DhKo I: 43)

In this way, the duties of the judge also have been stated by both these texts through what is implied by those very etymological explanations of the term. Further, Narada states this explicitly:

As a doctor extracts a dart from the body using surgical instruments, so a judge should extract a dart by using legal procedure. (NSm Mā 3.15)

[section from page 30, line 5 until page 39, line 13 is omitted]
Bhrigu, however, states also the lower venues for trials.⁵³

Bhrigu has declared ten venues, as well as five, for lawsuits through which litigants who have got into a dispute may arrive at a verdict. (DhKo I: 55)

Bhrigu himself, furthermore, has pointed out these fifteen venues:

Forest people should have recourse to their own people; traveling traders to other traveling traders; martial people to other martial people; and in the case of a village, those living in both.⁵⁴ Heads of families, leaders of traveling traders, and inhabitants of cities and villages may select a venue that they prefer with the agreement of both parties.

Village, citizenry, company, guild, and expert in the four sciences; groups, families, heads of families, appointed officials, and the king.

In this passage, the first five venues are meant only for specific groups such as forest people. When there is a legal dispute among people constituted as a village, the verdict is rendered by residents of the neighborhood. Heads of families, leaders of traveling traders, and inhabitants of cities and villages may select a venue that the plaintiff and defendant have agreed to without regret. The ten beginning with village are common venues. “Village” refers to people constituted as a village. “Citizenry” refers to a collection of city dwellers. “Company” is a collection of families, because of Katyayana’s statement: “A collection of families, however, is said to be a company.” “Guilds” are the eighteen lower castes, beginning with washermen.⁵⁵ “Expert in the four sciences” is someone who is versed in the four sciences, beginning with critical thinking.⁵⁶ The word “and” in “and expert in the four sciences” is used in order to combine the expert in the four sciences with other learned individuals, because Pitamaha prohibits a single individual from expounding dharma: “Therefore, a single individual, even if he knows the rules, should not make pronouncements about dharma.” “Groups” are those beginning with companies, because of Katyayana’s statement:

Companies, ascetic orders, associations, bands, and guilds, as well as others formed into organizations—they have the name “group” according to Brihaspati. (KātSm 682)

Brihaspati is mentioned in order to show that the use of this name to refer to companies and so forth was well known already in earlier times. “Band” is an association of men who carry arms, because Katyayana himself has said: “When men who carry various arms come together, however, they are called bands” (KātSm 678). “Families” are those belonging to the same lineages as the plaintiff and the defendant. “Heads of families” are some elders born in the same lineages as the plaintiff and the defendant. “Appointed officials” are the three assessors along with the judge. “King” implies that he is accompanied by Brahmans.

In this connection, Brihaspati states:

There are, it is stated, four kinds of court: stationary, nonstationary, provided with the royal seal, and directed by authoritative texts; there are also the same kinds of assessors. (BṛSm 1.1.57)

A court in the three venues beginning with forest people is nonstationary, because they, for the most part, tend to travel to other regions. Because that mobility is absent in the ten venues beginning with “those living in both,” they are stationary. The venue of appointed officials, on the other hand, is the one provided with the royal seal, because it is associated with an overseer who carries the royal seal. The venue of the king, however, is directed by authoritative texts, because it is governed by authoritative texts. Brihaspati himself, moreover, has stated this classification of courts:

The stationary is in a city; the nonstationary, called the mobile, is in a village; the one provided with the royal seal is connected with the overseer; and the one directed by authoritative texts is connected with the king. (BṛSm 1.1.58)

“Overseer” is the judge, because he is invested with the authority to try cases. From this, moreover, we gather that the king should place his own seal in his hand in order to summon the defendant. Of these, the stationary and nonstationary courts should be constituted by the very parties in search of a legal decision by means such as making a petition, offering money, and showing respect. The reason is that such a court is not established through the directive of either a treatise on dharma or the king.⁵⁷ A court provided with the royal seal and the one directed by legal texts are constituted by the king himself, because they fall within his own authority. Consequently, the simple fact that those in search of a legal decision approach the court does not imply the constitution of that court.

In this connection, Pitamaha states that the court directed by authoritative texts is superior to the other courts:

When cases that have been tried in earlier venues, whether they were tried according to dharma or not, are appealed to the venue of the king, those cases do maintain the earlier case.

“Earlier case” means the plaint. The phrase “venue of the king” is used as a synecdoche to include superior venues. For this reason, Pitamaha himself states:

What has been decided in the village may be appealed to the city. What has been decided in the city, however, may be appealed to the king. When something has been decided by the king, whether it is decided properly or improperly, there is no further appeal.

Narada also states:

Families, guilds, companies, an appointed official, and the king are the venues for judicial proceedings; each following one has greater authority than the preceding. (NSm Mā 1.7)

4. Beginning of the Trial

[Vyavahārakāṇḍa, pp. 70–80]

On this, Manu states:

Ascending the seat of dharma with his body covered and his mind composed, he should pay homage to the guardian deities of the world and open the trial. (MDh 8.23)

“At the time prescribed by authoritative texts” completes the sentence. Accordingly, Katyayana states:

At the proper time he should ask the plaintiff as he stands before him bowing: “What is your case? What is your grievance? Speak, man, and do not be afraid.” (KātSm 86)

“What is your case?” is a question aimed at finding out the refusal to give what is owed, and “What is your grievance?” is aimed at finding out the injury. Likewise, in order to find out the perpetrator, place, time, and reason of both those, Katyayana himself says that the presiding officer of the court should ask four questions:

By whom? Where? When? Why?—going to the court, he should ask in this manner. (KātSm 87)

When he is so questioned, the plaintiff, then, should apprise him of the entire complaint. Accordingly, Yajnavalkya states:

If someone who suffers an injury at the hands of others in a manner contrary to texts of recollection or normative practice reports it to the king, it indeed is a subject for litigation. (YDh 2.5)

This passage implicitly states that it is the plaintiff who should report a wrong done to him by another person. The word “If” here is intended to show that the reporting should be done because the accuser wants to do so and not by the command of the king. The plural “of others” is used as a synecdoche, and for that very reason Katyayana has presented the question regarding the perpetrator of the crime with a word in the singular: “By whom?” The use of “someone who has suffered an injury” is intended to point out the man entitled to initiate litigation, but not the man actually filing charges. The reason is that Katyayana has asserted that even an appointed representative may file charges in a lawsuit:

Whether a man has been appointed by the plaintiff or deputized by the defendant, when he argues the case of the other, the victory and the defeat affect just the two of them. (KātSm 91 =NSm Mā 2.22)

The term “appointed” is used as a synecdoche to indicate also his own people. For this very reason, Pitamaha states:

If the father, brother, friend, cognate, or affine appears, the lawsuit may then proceed.

When a man gets someone to do something through an appointment, that should be regarded as done by the man himself. Texts of recollection state that it cannot be invalidated.

Thus, we must determine that the initial charges should be filed by the plaintiff or by a man belonging to his own people, and not by anyone else. For this very reason, Narada states:

When someone who is not a brother, father, or son, or acting under an appointment, acts as a litigant in another man’s lawsuit, he is subject to punishment, as also someone who speaks falsely in legal proceedings. (NSm Mā 2.23)

Katyayana also states:

Slaves, employees, pupils, appointed persons, and relatives should not be punished when they speak as litigants. Anyone other than these is subject to punishment. (KātSm 92)

Likewise, Usanas states that the person filing the initial charges also, when he speaks in an impolite manner during the time of filing charges, should be punished:

When a man speaks with a weapon in hand, without an upper garment, with his hair loose, while seated,⁵⁸ using the left hand,⁵⁹or wearing a garland, he is subject to punishment. (=KātSm 99)

So, the intent is that a person should not speak in such a condition.

Thereafter, the scribe should write all that he states on a wooden board or the like. Accordingly, Narada states:

Enraged by one of the causes such as passion, when he says something in the court, he should say “Yes” and write down all that the plaintiff has said on a wooden board or the like. (NSm Mā 2.18)

“In the court” means in the presence of the king and the like. When it has been written down, and if it is not something that does not deserve to be investigated, such as: “I loaned him money in a previous birth, and he refuses to return it,” then, in order to summon the defendant, he should carry out such things as the giving of the seal. Accordingly, Katyayana states:

When he has been so questioned, the assessors along with the Brahmans should consider what he says. If the suit is legally valid, then he should entrust the seal to him or dispatch an assistant. (KātSm 87–88)

“To him,” that is, to the man filing the charges. “Assistant” is the bailiff. “Legally valid” means appropriate. The sentence should be completed thus: “for the purposes of summoning the defendant.” Accordingly, Brihaspati states:

When an accusation has been made against someone based either on facts or on suspicion, the king should summon that very man either through the seal or by means of an assistant. (BṛSm 1.1.141)

The intention is that only he is eligible to make a plea. For this very reason, Katyayana states:

The eligibility rests with the accused, and not with an outsider who is unconnected. (KātSm 90)

The meaning is that an outsider who is not the accused is not eligible to enter a plea in that lawsuit, because he has no connection to it. Therefore, an outsider’s role as pleader⁶⁰ comes about not from himself but for the following reasons and not any other: the accused has installed him in the role of defendant; or he has been presented to the judge by the defendant as someone who would carry out his lawsuit; or the plaintiff has willingly accepted him in the role of defendant. This is stated by Katyayana himself:

Even another person is permitted when he is made his substitute by the accused. Another outsider who is presented to the court president by him should be regarded as the substitute, as also someone agreed to by the plaintiff himself. (KātSm 89–90)

This is its meaning. Even another person, that is, someone unconnected to the lawsuit, when he is made the substitute, that is, made the defendant, he has been recognized by Manu and the like as the one who presents the plea. Likewise, another, that is a second person, should be so recognized who, being an outsider unconnected to the lawsuit, is presented to the court president, that is, to the judge, by the accused; or else, someone agreed to by the plaintiff himself, that is, accepted as the defendant. One should understand that the assumption of a defendant’s role by someone not eligible to it pertains to a situation where the one so eligible suffers from a disability such as illness, because in such a situation it is difficult for the eligible one to carry out that role in person. For this very reason, Brihaspati states:

In the case of a person who is timid, an imbecile, insane, aged, a woman, a child, or sick, a relative may present the plea, or else another man who has been appointed. (BṛSm 1.1.142)

For the same reason, moreover, Harita and others in their texts of recollection have prohibited the summoning of such individuals:

The king should not summon the following: a person who is indisposed, a child, aged, in dire straits, or occupied with religious rites; whose affairs would be neglected; who has fallen into misfortune; who is occupied with royal duties or a festival; and who is intoxicated, insane, feeble-minded, afflicted, or a dependent.

“Indisposed” means sick. “In dire straits” means someone who is facing misfortune. “Occupied with religious rites” means someone engrossed in performing daily or occasional rites. “Whose affairs would be neglected,” however, is someone whose affairs would suffer severe damage if he were to come. “Who has fallen into misfortune” is someone suffering the pain resulting from a cause such as the loss of a beloved. “Intoxicated” is someone whose mind is stupefied by an inebriating substance such as Dhuttūra.⁶¹ “Insane” due to evil spirits, bile, and the like. “Feeble-minded” means a person who pays no attention to anything. “Afflicted” means a person stricken by poison and the like. The use of the term “dependent” is meant as a synecdoche to include also women who are not independent.

[section from p. 74, line 4 until p. 75, line 5, is omitted]

Therefore, it is settled that the rule regarding a substitute is applicable only in the case of people who are indisposed and so forth.

When, however, the case cannot be resolved through the substitute offered by an indisposed person, then summons should be issued against even persons such as the indisposed. Accordingly, Harita states:

After ascertaining the place and time, and the relative gravity of the lawsuits, the king should have even the indisposed and the like summoned, bringing them in vehicles at a gentle pace.

When, however, the accusation concerns serious matters, then it is imperative that the accused himself be summoned, because in such a case it is forbidden to have a substitute. Accordingly, Katyayana states:

An alternate cannot be given in the murder of a Brahman, drinking liquor, theft, and having sex with one’s elder’s wife, as also in other litigations concerning abhorrent acts.⁶² (KātSm 93)

Katyayana himself gives also litigations concerning abhorrent acts:

Killing a human being, theft, adultery with another’s wife, eating forbidden food, abducting or deflowering a virgin, assault, counterfeiting, and treason against the king—for these an alternate cannot be given for either the plaintiff or the defendant. (KātSm 94–95)

“Alternate” is a substitute for the plaintiff or the defendant. He should not be accepted under any circumstances in such kinds of serious lawsuits. For this very reason, Harita states:

In serious lawsuits, after looking into the accusation, the king should summon even those living in the forest, such as renouncers, without arousing their anger.

Here, by saying “without arousing their anger” he conveys that in the case of ordinary people the summons may be issued even with a harsh voice. This is made clear, moreover, by Vyasa:

A person who inflicts an injury or does not return what is owed when it is requested because of his evil disposition should be dragged off on the orders of the king.

Brihaspati prescribes a fine on anyone who does not come even on the orders of the king:

When, however, a man who is summoned does not come because of arrogance, banking on the power of his relatives, a fine should be devised for him corresponding to the accusation. (BṛSm 1.1.144)

Katyayana also says:

When someone, although able, treats the royal decree with contempt, however, the king should imposed on him a fine according to the process given in the rules.

In the case of a minor affair, he should be fined fifty; in an affair that is middling, a minimum of 200; and in serious cases, always a minimum of 500. (KātSm 100–101)

These figures refer to Paṇa coins, because Katyayana himself states:

Whatever fine has been carefully set for an offense, it should be assumed to be paid in Paṇas or its equivalent to the king. (KātSm 102)

[section from p. 76, line 18 until p. 77, line 8 is omitted]

In this manner, when the accused has been brought by whatever means possible, he should place him along with the plaintiff in front of the court or in another chosen location. Accordingly, Pitamaha states:

The accused, along with the plaintiff, should be placed in front of the court or in another preferred location; otherwise he would not be reliable.⁶³

The sense is that one should place him in a location where, when he stands, he will not be able to hide incriminating signs.

Thereafter, when questioned by the king, the accused should report what happened in a way that would favor him, because it is not possible to search for the truth merely on the basis of the report made by the plaintiff. For this very reason, while dealing with the method of investigating what happened, Manu states:

by means of voice, color, expression, bearing, eyes, and gestures. (MDh 8.25)

Even in a fraudulent lawsuit, after writing down the plaint, in order to ascertain its fraudulent nature, what the accused says happened should be gathered from his own mouth. Once it is determined that the two are engaging in deceitful litigations, thereafter the trial procedure tracks that deceit. Therefore, it must be recognized that the accused also presents a report of what happened.

Yajnavalkya states what should be done after determining that the two litigants are engaged in deceit:

From each of the two parties a surety should be secured capable of satisfying the verdict. (YDh 2.10)

The meaning is as follows. “Verdict” refers to obtaining without effort the money resulting from proving the case and the money resulting from the fine. The official conducting the trial should take a surety capable of carrying that out from both the plaintiff and the defendant. In this regard, Katyayana points out persons who should be avoided:

The following should never be accepted to carry out the functions of a surety: master, enemy, someone appointed by the master or under arrest, someone who has been fined, those under suspicion, heir, pauper, those living until the end, someone engaged in royal business, men who have renounced, someone unable to pay the creditor and an equal sum as a fine to the king, and someone who is unknown. (KātSm 114–16)

“Those under suspicion” are public sinners. “Those living until the end” are perpetual Vedic students. “An equal sum,” that is, a sum equal to the amount that was the subject of the litigation. This is meant to refer implicitly to the prescribed fine. Katyayana himself states what must be done if a litigant is unable to give a surety for the lawsuit:

Now, if a litigant entitled to file a lawsuit does not have a surety, he should be guarded at the end of the day, and he should pay a stipend to the emissary. (KātSm 117)

“Emissary” means the bailiff.

Further, Katyayana himself states that only a litigant who has been made to give up the article he has taken should be permitted to proceed with the lawsuit:

The king should not permit a man who has taken the article to proceed with the lawsuit; either it should be given to him or deposited with another. (KātSm 120)

“Another” means an impartial person….

Katyayana himself, further, has given also the order in which the accuser and so forth are to speak:

Of these, the accuser should speak at the outset; immediately after him the accused; when those two have finished, the court officials; and after that the judge. (KātSm 121)

“Speak at the outset”: the meaning is that he should present the plaint. Likewise, Narada states:

Those who know the law state that the person who first lodges the report with the king with respect to an order, document, record, decree, pledge, paper, sale, or purchase should be regarded as the one who should present the argument first.⁶⁴ (NSm Mā 2.38)

The meaning is that in every lawsuit it is only the accuser who presents the plaint. Narada himself gives an exception to this:

To the person who has suffered a greater injury or whose case has greater weight should be assigned the litigant’s role, and not to the person who first reported the matter. (DhKo I: 113)

“Litigant’s role” means the plaintiff. Accordingly, Katyayana says:

The person who has suffered a greater injury or whose case has greater weight should become the plaintiff, not the person who first reported the matter. (KātSm 122)

The meaning is that under these kinds of circumstances the investigators should reverse the roles of plaintiff and defendant. When both come simultaneously to assume the roles of plaintiff and defendant with respect to each other because there are two different plaints to be proven, then the complaint of the petitioner who is of a higher caste or has suffered a greater injury should be heard first. Accordingly, Brihaspati states:

When a plaintiff and a defendant seek to be heard first, then the case should be taken up in the order of the social class or taking into account the injury suffered. (BṛSm 1.1.172)

When they belong to the same social class, then it should be taken up taking into account the injury suffered. Manu, however, gives the order in which the cases are tried when several pairs of plaintiffs arrive together:

Paying attention only to these two—what is and what is not in accord with the provisions of polity, and what is and what is not in accord with dharma—he should try all the cases brought by litigants in the order of their social class. (MDh 8.24)

5. Plaint

[Vyavahārakāṇḍa, pp. 80–92]

On this issue, Brihaspati states:

Thereafter, when he has arrived the plaintiff should put down the plaint. (BṛSm 1.2.5)

The meaning is that, when the defendant has come near, he should write down the plaint. Accordingly, Yajnavalkya says:

In the presence of the defendant, the charge should be written down exactly as reported by the plaintiff. (YDh 2.6ab)

The statement “as reported” is intended to point out that the same plaint that was reported should be written down and not another plaint; it does not mean that only what was reported should be written down. For this reason, Yajnavalkya himself states that at this time specifics such as the year should be written down even though it was not reported:

recording the year, month, fortnight, day, name, caste, and the like. (YDh 2.6cd)

The year pertaining to the time of loaning of the money and the like should be written down. Month and so forth also pertain to the same time. Katyayana points out the specifics comprehended by the words “and the like”:

After entering the period, year, month, fortnight, day, time, region, country, place, caste, appearance, age, article contained in the plaint and its dimensions, amount, his own name, the names of the kings in due order, residence, name of what is to be secured, the names of ancestors in due order, the injury, the one who took, the one who gave, and reasons for forbearance, as well as others, he should first state the plaint verbally and then put it down in writing. (KātSm 124–26)

“Period” is the period when the money was borrowed and defined according to the current king. “Year,” namely, the god-year and the like.⁶⁵ “Time” is the period defined according to the evidence such as enjoyment. “Region” is the specific area in which the field and the like given in the plaint is located. “Country” is a territory such as the doab. “Place” is the village and the like in which the subject of the dispute, such as a house, is located. “Appearance” is the particular clustering of component elements. “Age” is youth and so forth. “Dimensions,” namely, the size in terms of Daṇḍa, Tulā, Prastha,⁶⁶ and so forth. “His own,” that is, the plaintiff’s. “Of the kings,” that is, of the kings reigning during the time of enjoyment of the field and so forth. “Residence” is the house, cattle station, and the like. “Ancestors” are the father and so forth of the plaintiff and the defendant. “Injury” caused by the creditor to the surety.⁶⁷ “One who took,” namely, the one who made the acquisition through a gift and the like. “One who gave,” namely, the donor. “Reasons for forbearance” are the grounds for tolerating the enjoyment by someone else of one’s own money and the like. “Others” means items beyond those pointed out, such as interest and source of acquisition. Accordingly, Brihaspati states:

The plaint should be free from faults, containing the charge, and including the evidence and the source of acquisition. He should have these written down: the article, its amount and profit, the injury, and the reason for forbearance. (BṛSm 1.2.5–6)

Brihaspati, likewise, has given also other characteristics:

Brief in extent, abundant in meaning, unambiguous, distinct, free from contradictory evidence, and capable of countering opposing evidence⁶⁸—after examining carefully these kinds of characteristics, he should accept a plaint made that is certain; what is other than that is a specious plaint. (BṛSm 1.2.18)

The author of the Saṃgraha also states:

Containing the charge; endowed with the required characteristics; complete; distinct; containing the issue to be proved; using words with literal meanings; conforming to the original charge; well recognized; not conflicting; certain; capable of proof; concise, yet containing the entire charge; not inconsistent with regard to place and time; stating the year, season, month, fortnight, day, time, country, region, place, house, the name of the article contained in the charge, caste, appearance, and age; containing the dimensions and the amount of the article contained in the charge; stating one’s own name and that of the defendant; inscribed with the names of the ancestors of opponent and self, and of several kings; stating the reasons for forbearance and the injury suffered; and pointing out the taker and the donor—when a report containing these characteristics is made to the king, it is known as the plaint.

“Containing the charge” = containing the objective; “endowed with the required characteristics” = endowed with attributes such as brevity and abundance of meaning; “complete” = not requiring additional words; “distinct” =not containing indistinct syllables; “containing the issue to be proved” = not bereft of the charge that he intends to prove; “using words with literal meanings” = not containing words used in a metaphorical or figurative sense; “conforming to the original charge” = not in conflict with the charge that was initially reported; “well recognized” = referring to objects well recognized in the world; “not conflicting” = not in conflict with the city, kingdom, judge, king, and the like, as also not in conflict with what precedes and what follows, with epistemic sources such as perception, and with the dharma of legal procedure; “certain” = not raising a suspicion that there may be a different meaning; “capable of proof” =suitable to be proved; “concise” = not prolix; “containing the entire charge” = not leaving out anything that needs to be stated; “not inconsistent with regard to place and time” = not containing such statements as: “The betel nut field in the middle region” and “One thousand mangoes of the autumn crop have been stolen.”⁶⁹ “Inscribed with the names of the ancestors of opponent and self, and of several kings”—opponent is the defendant, and self is the plaintiff; ancestors are the father, etc., of the two; several kings are those during the period of enjoyment. The meanings of the rest have already been explained.

The provisions beginning with “Containing the charge” and ending with “not inconsistent with regard to place and time,” along with the names of the plaintiff and the defendant, are to be employed in plaints of all lawsuits. Therefore, every plaint must necessarily contain them, because without them it is impossible anywhere to easily prove the charge. Not all the features beginning with the year, on the other hand, need to be employed in every case, because even in the absence of some of them it is possible to prove the charge in specific cases. Consequently, one should record in a particular case those that are found to be useful for it, but not in other cases, because they are of no use there. Among them, the times beginning with year are useful in lawsuits pertaining to the doubling of a loan given on interest and in lawsuits focused on which was earlier and which was later with respect to a gift, purchase, pledge, and the like.⁷⁰ Country, region, and place, as also the names of the ancestors of opponent and self and of several kings, and pointing out the taker and the donor are useful in lawsuits pertaining to immovable property. Name of the article contained in the charge, caste, appearance, and age are useful in the case of theft, sale without ownership, and the like, as also in lawsuits concerning money. Dimensions and amount are useful in lawsuits regarding articles that can be measured, weighed, or counted, as also in lawsuits pertaining to theft. The reasons for forbearance are useful in lawsuits pertaining to such issues as indifference with regard to a place. Injury suffered is useful in lawsuits such as that between a debtor and a surety. These are examples. In this manner, one should understand that, along with the features beginning with “containing the charge,” the year and the rest should be recorded whenever they are useful in specific cases. For this very reason, Katyayana says:

Country, place, location,⁷¹ caste, name, residence, extent, name of the field, the father and grandfather, and enumeration of past kings—one should record these ten in lawsuits pertaining to immovable property. (KātSm 127–28)

The intention is that one should record these because they are useful in such cases. Harita also says:

Seat; bed; vehicle; article made of copper, brass, or iron; grain; stone article; garment; biped; quadruped; gem; pearl; coral; diamond; silver; and gold—likewise, if there is a collection of articles—their total number should be counted. The litigants should do the measurement using the method of measuring employed in that particular region with regard to that particular article, as also the counting.

…He states that the counting should be done after measuring with that method of measuring.

Thus, given that it is impossible to prove the charge when features that are useful in a particular case are absent, a plaint lacking the useful features is totally unacceptable. For this very reason, Katyayana says:

A plaint is regarded as unacceptable when it lacks the region and time, omits the article and the amount, and lacks the extent of the charge. (KātSm 138)

“Extent of the charge” means the dimensions of the article of the plaint. Likewise, a plaint should be rejected outright when it also lacks attributes such as purpose.

The king should reject a plaint that is implausible, presents no loss, is meaningless, is without purpose, is incapable of proof, or is contradictory. (KātSm 140)

Here, the implausible has been explained by Brihaspati:

What no one really does is called implausible. (BṛSm 1.2.9)

Here is an example of it: “He took a pan made with 1,000 Palas.”⁷² “Presents no loss” means causing no harm; for example: “He carries on his activities in his house with the light provided by the lamp in my house.” The meaningless and what is without purpose have been described by Brihaspati:

When the damage caused or the amount at issue is minuscule, it is said to be meaningless. When, however, there is no obstruction to carrying out one’s tasks, it should be recognized as without purpose. (BṛSm 1.2.10)

Of these, here is an example of the meaningless: “He looked at me with a smile” or “He stole lac that belonged to me.” An example of one without purpose is: “Yajnadatta performs a recitation boastfully near our house.” Brihaspati himself has described these two in a different way:

A lawsuit not capable of inclusion within the subjects of litigation beginning with lending money on interest is meaningless. One not capable of inclusion within the subjects beginning with verbal assault should be known as without purpose. (BṛSm 1.2.11)

The meaning is this. A lawsuit that does not fall within the eighteen subjects of litigation beginning with nonpayment of debts is meaningless. When a plaint contains subjects beginning with verbal assault that do not lend themselves to proving the charge, it is without purpose. Those incapable of proof and contradictory have also been described by Brihaspati himself:

“This man must return my bow made of hare’s horn”: such an impossible plaint, wise people say, is incapable of proof. When a plaint that is submitted opposes the judge, king, city, or kingdom, it is called contradictory. (BṛSm 1.2.12–13)

Narada also points out the faults of a plaint:

Pertaining to another’s lawsuit, lacking meaning, without amount or title, deficiency or excess in the document, botched document—these are said to be the defects of a plaint. (NSm Mā 2.8)

Narada himself explains these:

When the writing in the plaint is carried out by one plaintiff with respect to a common lawsuit, or by a plaintiff who has not been appointed to that lawsuit, wise men call that pertaining to another’s lawsuit. (DhKo I: 143)

The meaning is this. A single member of a company writes the charge of the company in the plaint, or a person not appointed, that is, a person who is unrelated, writes the charge of one individual in the plaint.

When someone out of hatred and delusion says, “He is a killer of a Brahman,” and in that regard abandons the charge, they take that to be a plaint lacking substance. (DhKo I: 143)

The meaning is that in a plaint, when the man making the charge forsakes what he has said, that plaint is lacking meaning.

A plaint in which, with respect to what must be counted, weighed, or measured, as also with regard to a field, house, and the like, the amount is not specified is one without amount.

Acquired through learning; obtained as a pledge; received; bought; come down through successive generations—where such information is not written down, that plaint is without title.

Year, month, fortnight, lunar day, day of the week—where these are not written down, that plaint is regarded as having a deficiency in the document.

When someone, after writing down the plaint and before a plea could be entered, notes down beforehand the witness, that plaint should be considered to have an excess in the document.

When both in their entirety have been presented by the plaintiff and written down by him in a somewhat indistinct manner, that plaint is regarded as botched. (DhKo I: 143)

The meaning is that the two sides⁷³ in their entirety have been presented by just the plaintiff. Narada himself, further, has pointed out also other plaints that are unacceptable:

A plaint is considered unacceptable when there is a violation of the proper sequence, when the meaning comes by inverting the order, when the meaning comes from scattered words, when it is meaningless, when the time has passed, and when it is double-based.⁷⁴ (DhKo I: 143)

Among these, one in which there is a violation of the proper sequence has been explained by Narada himself:

When the sense of the plaint cannot be surmised in the order in which it is written down, however, the plaint is not approved; it is called one with a violation of the proper sequence. (DhKo I: 144)

The meaning is that the violation of the proper sequence consists of placing the syllables in a haphazard manner. One where the meaning comes by inverting the order is when the meaning is revealed by sundering the word order. One where the meaning comes from scattered words is when the meaning is produced by blending words together. Narada himself has explained the meaningless and the rest:

Where, abandoning the original meaning, a secondary meaning of it is written down, that plaint is meaningless; it lacks the means of establishing the transaction.

Where an article is written down whose stipulated time has passed, it is declared to be a plaint whose time has passed, even when means of proof are available.

When in a plaint the charge to be proved, because of the difference in evidence, is considered to be twofold with consideration of separate times, that plaint is said to be double-based. (DhKo I: 144)

“Means of establishing the transaction,” that is, means of establishing the money involved in the original transaction. “Stipulated time,” that is, the time limit. “Difference in evidence,” that is, difference in means of proof. Narada himself, likewise, has given also other kinds of specious plaints:

By placing different syllables and thereby surmising a different meaning, the document becomes confusing and the allegation too becomes confused. (NSm Mā 2.170)

When a man, even though capable, has shown indifference for ten or twenty years to the issue to be established in the lawsuit, his plaint is phony.

When he gets the means of proof written down along with the charge that is presented, that plaint is invalid, because it lacks the proper order of statements. (DhKo I: 143)

“Allegation” here refers to the charge to be proved, while “means of establishing” refers to the evidence. Harita also states:

When, however, a case, the presentation of whose evidence has commenced, is entered in two ways—according to one’s own charge to be proved or different from it— that plaint is also phony.

The meaning is this. A case that one has begun to demonstrate is entered in the plaint in two ways, that is, in two modes: as a charge that is to be demonstrated, and in a manner different from the charge as initially reported or opposed to it. That is also a specious plaint. Bhrigu also states:

When the defeated party has abandoned the charge or when one alternative has to be assumed at a time, that plaint cannot be demonstrated, being dismissed by authoritative texts and the cultured elite.

When both a contradictory and a noncontradictory charge have been written down in the same plaint, it should be summarily dismissed.

“Defeated” mean the defeated litigant. Pitamaha also states:

When someone enters statements⁷⁵ that are mutually contradictory, his plaint, mixing up contradictory statements, is invalid.

Katyayana also states:

“This man does not want to do what is required by law” or “This man does what is illegal”—someone who does not have this written down, his plaint is invalid. (KātSm 139)

The meaning is this. He does not have it written down either as a refusal, like this: “He took the money come down to me legally and does not return it” or as a commission, like this: “He has stolen my field and so forth.” Further:

A plaint that is contrary to the city or the country, that is barred by the king, and that mixes several subjects of litigation is invalid. (KātSm 136)

The meaning is this. One that is contrary to the customs of the city or the country, and one whose object is something like a tax or a hall excluded⁷⁶ by the king, is invalid under all circumstances. One that mixes several subjects of litigation such as the nonpayment of debts is invalid when presented simultaneously, because they require different modes of proof. With regard, however, to what Katyayana himself has said—

With the desire to find out the truth, a king may freely admit even a lawsuit with multiple plaints that is ascertained to be well in conformity with legal procedure. (KātSm 137)

—it is intended to teach that a plaint that mixes several subjects of litigation may be admissible at separate times. Or else, it is intended to teach the following: gold, clothes, farm animals, and grain that are different in kind but are included within a single subject of litigation such as the nonpayment of debts, and articles of the same kind taken under different provisions such as number, extent, place, time, and interest, are differentially given in the plaint in order to state what exactly happened. Thereupon, all that, insofar as they are to be returned, is to be accepted as summed up in a single lawsuit. Therefore, this statement does not contradict the earlier text.⁷⁷ Further:

Title, full enjoyment, disruption, and declaration: these four, they say, are the faults of a plaint when they are presented without cause.⁷⁸ (DhKo I: 155)

“Title” is the source of the acquisition of the property, such as receiving as a gift.⁷⁹ “Full enjoyment” is the noncessation of the use according to one’s wishes. “Disruption” is the disruption of enjoyment for reasons such as a tumult in the region. “Declaration” is stating the title and enjoyment through proper arguments. The meaning is as follows. These four beginning with title are said to be the proper attributes of a plaint. When, however, title and the rest are entered in the plaint “without cause,” that is, without any reason for their entry, then they are said to be faults of a plaint. Therefore, in this case what is required should be inserted and what is not required should be taken out. Accordingly, Katyayana himself says:

He should get superfluous points cut out and have the gaps filled in. He should write it on the ground until the case is fixed. (KātSm 130)

“Cut out” means taken out. “On the ground”⁸⁰ is used elliptically. Accordingly, Katyayana himself says:

The adjudicator should have the plaint that has been spontaneously presented written down, first on a plank using white chalk and then, once it has been corrected, on paper. (KātSm 131)

“Spontaneously presented” means presented without intrusions such as fear. “Corrected” means without superfluous points and gaps, and without faults such as implausibility. Accordingly, Brihaspati states:

Experts on plaints say that a true plaint must be one free of the faults of a plaint, containing the charge to be proved along with its evidence, certain, and recognized in the world. (BṛSm 1.2.14)

“Recognized in the world” means not opposed to the dharma pertaining to transactions, because a meaning such as “well known in the world” is implicitly declared in the statement “free of the faults of a plaint.”⁸¹ For this very reason, Manu states:

A plaint, even if it is well substantiated, is not acceptable to the court if its provisions are contrary to settled dharma pertaining to transactions.⁸² (MDh 8.164)

The meaning is that even though it is free from all faults, a plaint should not be accepted by court officials if it is opposed to the dharma pertaining to transactions.

Brihaspati states that a plaint containing the aforementioned attributes is of four kinds:

An accusation based on suspicion, one based on facts, one referring to the recovery of a received article, and one appealing for a fresh trial of a dispute that has been decided. (BṛSm 1.2.41)

On this point, Narada states:

He may correct the plaint, however, only until a plea has been entered. Once the plaint has been checked by the plea, the correction has to be halted.

One should not assume here, moreover, that, following the maxim of the “conch time,” the correction should be halted when the proper time for entering a plea has passed.⁸³ For this very reason, Narada himself says:

As long as the defendant has not entered a plea to the plaint, the plaintiff may continue to write until he has the matter as he intended.

Some want to permit corrections to be made even after the plea has been entered. That should be rejected, because it would lead to an infinite regression, and because it goes against the statements given above. For this very reason, the author of the Saṃgraha states:

He should again get the gaps and superfluities of the plaint properly corrected by the officials,⁸⁴ and then listen to the plea.

Consequently, when the defendant has begun his plea, a statement by the plaintiff, even if it is useful, should not be admitted, because the time for it has elapsed.

“Has begun” means has presented, because even while the plea is being entered it is permitted to make corrections. Accordingly, Katyayana states:

What the plaintiff, because of negligence or deception, has failed to state, or is given within the plea should be accepted in the case of both. (KātSm 193)

“Within the plea” means what is stated by the plaintiff even while the plea is being articulated. “Both” means plaintiff and defendant. In the case of the defendant, however, the “plea” is the part consisting of evidence.⁸⁵ When court officials have accepted the plea even before the plaint could be corrected, then, after punishing the assessors, the case should be heard after the plaint has been presented again.

What should be done, however, when a plaintiff is unable to present the plaint immediately is stated by Brihaspati:

When an accuser is incapable of making a statement due to timidity, he should be given time in keeping with his ability and the requirements of the case. (BṛSm 1.2.34)

6. Plea

[Vyavahārakāṇḍa, pp. 92–105]

With regard to this, Brihaspati states:

Once the plaint has been determined, what is acceptable and unacceptable have been specified, and the case given in the plaint has been fixed, he should then have the plea written down. (BṛSm 1.3.2)

The meaning is as follows. Once the judge and others, after consultation, have permanently fixed the plaint that had already has been determined by the plaintiff, then the defendant should have his plea to that plaint written down. Narada also states:

When, however, this kind of plaint has been presented by the plaintiff, the defendant should then enter a plea addressing that plaint.

The meaning of “this kind” has been explained by Harita:

Comprising few syllables, full of meaning, free from the faults of a plaint, having witnesses, containing the cause, irreproachable, and well settled—when this kind of plaint has been written down by the plaintiff, the defendant should then enter a plea addressing that plaint.

“Having witnesses,” that is, having being examined by the judge and the like. It is implicitly established, however, that when the plaint is not of this kind, he should not enter a plea. In order to make this clear, Harita himself, after giving one example of a specious plaint, says that no plea should be given to it:

When one man makes a demand on a piece of land held in common or a property in the custody of a company, a wise man should not enter a plea.

Consequently, Yajnavalkya states that the defendant should write down a plea only to a plaint that has been examined:

After the defendant has heard the point, his plea should be written down in the presence of the petitioner. (YDh 2.7)

The meaning derived from the syllables is “after the defendant has heard the point of the plaint.”⁸⁶ The author of the Saṃgraha also says:

Without the possibility of a different meaning, without a deficient meaning, containing the legal title, without gaps or superfluities, not implausible, and not needing other syllables for its meaning—immediately after this kind of plaint has been written down on paper is the time for the defendant, who has heard the point, to enter a plea.

The meaning is that the plaint has been written down in such a way that it contains all the attributes beginning with “without the possibility of a different meaning.” This restrictive rule with respect to time applies only to disputes with regard to cows and the like. Accordingly, Narada states:

In cases involving cows, land, gold, women, theft, assault, or an emergency, as also violence and accusations involving great crimes, he should proceed with the case immediately. (NSm Mā 1.39)

“Accusations” is announcement of a sin. Even though it is a variety of assault, it is stated again to draw special attention to it. An urgent matter has been explained by Katyayana:

When the value of the thing would depreciate, or it would perish or be lost, then a delay should not be permitted; for that is an urgent case. (KātSm 149)

Katyayana himself, likewise, states that in other cases also a plea should be entered immediately:

He should make him enter a plea immediately when the case relates to a cow, bull, field, woman, birth, deposit, loan, gift, purchase, sale, deflowering of a virgin, theft, quarrel, violence, treasure trove, deceit, or perjury. (KātSm 150–51)

“Deceit” refers to an agreement made under the sway of fear and the like. Yajnavalkya also states:

In cases involving violence, theft, assault, cows, the accusation of a great crime, or an urgent matter, as well as one involving a woman, he should make the defendant enter a plea immediately; in other cases, texts of recollection, say, a delay may be allowed as desired. (YDh 2.12)

“In other cases” means in cases such as the nonpayment of a debt. Accordingly, Narada states:

Because of the intricate nature of disputes and also because of the debility of memory, in cases about debt and the like, he may at his discretion grant a delay with the desire to ascertain the facts. (NSm Mā 1.38)

“About debts” means in subjects of litigation such as the nonpayment of debts. For this very reason, Pitamaha states:

He should make every effort to grant a delay in a case relating to debt, sealed deposit, open deposit, gift, partnership, agreement, and partition of property.

Even in these kinds of cases, a delay is granted only when requested by the defendant for such reasons as failure of memory. Accordingly, Katyayana states:

After hearing the charge stated in the document, if the defendant for good reason requests a delay in entering a plea, he should be granted that without a doubt. (KātSm 145)

Katyayana himself says that in cases relating to things done immediately before, the plea should be entered immediately, because there the memory is fresh:

In cases relating to things done immediately before, he should make him enter a plea immediately; in cases relating to matters transacted a long time ago, the king should grant a delay to the defendant. (KātSm 153)

The term “defendant” is used as a synecdoche. For this very reason, Narada states:

When someone wants to present a plea but his mind is not up to the task, a delay may, indeed, be granted to both the plaintiff and the defendant.

And, in anticipation of the question how much time should be given, Narada himself states:

Immediately, one day, five days, or three days, depending on whether the case is serious or minor; in cases involving debts and the like, he should receive a delay of one month, three fortnights, or seven days.

Gautama also says, “He should wait for a year” (GDh 13.28). With regard to this, Katyayana has given the norm:

Taking into account the time, the capacity, and the relative seriousness of the lawsuits, the king shall grant a short or a long delay to the defendant. (KātSm 147)

“Time” relates to money and the like. “Capacity” relates to the litigants. “Lawsuits” are the issues that are presented in the plaint. The meaning of the above verse, however, has been elucidated in detail by Katyayana himself:

In the case of something done immediately beforehand, it should be done immediately; when a year has elapsed, in a day; when six years have elapsed, in three days; when twelve years have elapsed, in seven days; when twenty years have elapsed, he should get ten days or half a month; when thirty years have elapsed, one month; and beyond that, three fortnights. (KātSm 154–55)

He also points out the norm based on capacity:

He may grant a delay himself according to his wishes for a period of less than a year, and a year to someone who is an idiot, insane, or severely ill.

When the defendant has gone to another region, when the status of the property is unknown,⁸⁷ or when either the source or the witnesses are located in a foreign country, then a delay should be granted to men until their return to their own country. (KātSm 156–58)

The presiding officer of the court should establish times less than a year— beginning with one day and extending to several fortnights, with a maximum of three fortnights—taking into account the capacity of the litigants.⁸⁸ “Source” is the property that is at the basis of the litigation.⁸⁹ Likewise, he clarifies the norm based on the lawsuit:

A delay of a day, a month, a month and a half, a season, or even a year, or even beyond that should be granted consistent with the nature of the case. (KātSm 148)

“Nature of the case” is the relative seriousness of the case. Thus, Brihaspati states that, when one of these times that has been fixed arrives, a plea should be written down that is neither deficient nor superfluous with respect to the meaning derived from the syllables of the plaint:

When the litigants have been brought together simultaneously, the defendant, in the presence of the assessors, should then write down the plea corresponding to the meaning derived from the syllables of the plaint. (BṛSm 1.3.26)

In this regard, Katyayana says with reference to the king:

After examining whatever rules of practice with regard to the issue have been handed down through successive generations, the king should have the plea entered in accordance with the law. (KātSm 164)

The characteristics of a plea, however, are given by Prajapati:

Encompassing the plaint, substantive, unambiguous, not confusing, and comprehensible without an explanation: such, experts in these matters state, is a plea.

“Encompassing the plaint” means covering the entire plaint. “Substantive” means able to answer the previous accusation. “Unambiguous” means without gaps, paronomasia, and the like. “Not confusing” means having a meaning clear from the syntax. “Comprehensible without an explanation” means easily understood. Harita also states:

Connected to the points of the plaint, addressing more than a single point, not confusing, not terse, not containing disjointed words, encompassing, not too prolix, substantive, unambiguous, not stemming from just a single section of the plea, within the hearing of the litigant, and without a hidden meaning—he should enter this kind of plea.

“Connected to the points of the plaint” means corresponding to the accusation. “Addressing more than a single point” means containing all the excerpted points. “Not containing disjointed words” means preceded by a definite proposition. “Not stemming from just a single section of the plea” means not dealing with just one part of his own plea. “Within the hearing of the litigant” means heard by the man filing the case. “Without a hidden meaning” means intelligible simply through well-known words and without indirect modes of expression. One should know that a plea with these characteristics is of four types, because of Brihaspati’s text of recollection:

The plaint is of four types, and so is the rejoinder. (BṛSm 1.2.36)

Anticipating the question, “How, then, does the rejoinder become fourfold?” Narada states:

A plea is of four kinds by way of denial, admission, special plea, or establishing a prior judgment. (NSm Mā 2.4)

The instrumental case used here shows that a plea has these characteristics. Of these, Katyayana gives the characteristics of denial and admission:

If the accused rejects the accusation, one should recognize that plea as denial in terms of legal procedure. Stating the truth of the charge is said to be admission. (KātSm 167–68)

Narada has given the characteristics of a special plea:

With regard to the charge written down by the plaintiff, if the defendant, after admitting, “It is so,” provides an exculpating reason, it is said to be a special plea.

Harita has given the characteristics of a prior judgment:

If someone says: “On this complaint a trial has already been conducted between him and me, and on that occasion he was defeated,” then that plea is one of prior judgment.

The pleas with the characteristics given above are described also by Prajapati in order to make them clear:

“Whatever the plaintiff has reported here in connection with me, all that is false”: such a plea is said to be denial.

“This must, indeed, be given to him. The plaintiff has not spoken an untruth”: this is the second kind of plea, called admission.

“He did, indeed, give it to me, but I have returned it to him”: this kind of plea is called special plea.

“I was formerly sued by the plaintiff on this issue, and in that lawsuit he was defeated by me”: this is called the procedure of prior judgment.

Katyayana says that this plea of prior judgment is of three kinds:

“I will prove that he was, in fact, previously defeated by me through court officials, witnesses, or a document”; in this way the plea of prior judgment is of three kinds. (KātSm 172)

The term “court officials” is used to refer implicitly to those who tried the original lawsuit. Likewise, Katyayana himself says that there are four types of denial:

“This is false,” “I do not know anything about this,” “I was not present there at that time,” and “I was not born at that time”—these are the four types of denial. (KāSm 169)

In the same way, varieties of admission also should be surmised, such as: “I took it,” “It is true,” and “It is just as he says.” The varieties of a special plea also should be gathered, such as: “I took it, but returned it,” “I received it as a gift.” In this connection, Brihaspati states:

The procedure for the defendant to respond to an apposite charge has been explained. Among all the four varieties, now we explain which should not be accepted.

He should not have this kind of plea written down: different from what is alleged, neutral, with gaps or superfluities, not apposite, not encompassing, not substantive, and ambiguous. (BṛSm 1.3.27–28)

“Different from what is alleged” means that it does not eliminate the accusation written down by the plaintiff. “Neutral” means that it does not have the character of a plea. “Not apposite” means that it does not correspond to the accusation. Katyayana also states:

Unrecognized, contradictory, too terse, too prolix, ambiguous, impossible, unclear, irrelevant, containing the flaw of excess, nonencompassing, with a disruptive statement, with a hidden meaning, confusing, comprehensible only with an explanation, and unsubstantial—such a plea is not approved by the wise. (KātSm 173–74)

Katyayana himself has explained the first five of these specious pleas:

When it is made by someone ignorant of the marks, features, thousand,⁹⁰ and time, or in a different language, that plea is unrecognized. (KātSm 176)

The meaning is that what is stated by someone ignorant of the distinguishing marks, the appearance of bodily parts, the number, and time, and what is stated in a foreign language is “unrecognized.”

“I returned it when I was a child”; “Indeed, I did not return it”—when someone gives such a response, that plea should be recognized as contradictory. (KātSm 177)

The meaning is that a statement where what was stated earlier contradicts what is said later is a contradictory plea.

Instead of saying, “On this charge this man was formerly defeated by me,” when he says, “This man formerly by me,” that is said to be an incomplete plea. (KātSm 178)

The meaning is this. When he should have said, “On this charge this man was formerly defeated by me,” a plea that states only this much, “Formerly by me,” is too terse.

When he should have said, “I did take,” he says, “The article I formerly took, with that I performed the task,” that is too prolix. (KātSm 179)

The meaning is this. When in a plea of admission only this much should be stated: “I did take,” a plea that states: “The article I formerly…” is too prolix.

When he should have said deyaṃ mayā—“It should be given by me”—but he says something like mayādeyam—“By me it should (not) be given”—wise people should know this as an ambiguous plea within legal procedure. (KātSm 180)

The meaning is this. In the statement mayādeyam, however, given the possibility of the Sandhi combination of the negative a, it is possible also to understand adeyam (should not be given).⁹¹ Therefore, this sort of plea is ambiguous.

“The money that is to be given by us has been given by the son of our great-grandson”: this kind of plea is impossible. One that is impossible to identify as “This is the plea” is unclear. Thinking that these two specious pleas are clear, Katyayana has not explained them. He has clarified the irrelevant:

“This man, being both strong and weak, formerly concealed a violent act”: they think that this is a nonstatement; it is said to be an irrelevant plea. (KātSm 181)

The meaning is this. What terminates simply with the declaration of the bad conduct of the plaintiff, in the same way as mutually contradictory statements, is a plea that is irrelevant.

“Containing the flaw of excess” means containing a flaw as a result of hyperbole, as when, in response to “One hundred should be given,” he says, “Two hundred was given.” Katyayana himself has explained the four beginning with “nonencompassing”:

When the plaint states, “I gave him one thousand and a half” and it is said: “I returned the half,” that is here said to be nonencompassing.

Before the plaintiff has properly written down his allegation, when he says, “I did not take it in the past,” it is called a plea with a disruptive statement. (KātSm 182–83)

This is the meaning. When a plea of denial is made before the plaint has been finally resolved, it is a disruptive statement.

“So, will someone return a tāmarasa that he has not taken?” In terms of legal procedure, however, this should be known as a plea with a hidden meaning. (KātSm 184)

What this example of a specious plea means to say is: “I did not take the lotus. Therefore, I will not return it.” The meaning of the verse is this. A plea should be viewed as having a hidden meaning when it contains words such as tāmarasa (for lotus) not found in common usage everywhere, and when it contains roundabout expressions⁹² and the like.

“Is it that it is to be given (not given) always by him alone? It could be that it is to be given (not given) by me.” ⁹³ Experts in these matters consider this kind of plea to be confusing. (KātSm 185)

The meaning is that a confusing plea is one that contains words that are syntactically unconnected or with more than one meaning. A plea that is comprehensible only with an explanation is one that is difficult to understand by itself. Katyayana himself explains the unsubstantial plea:

“A crow does not have—or does have—teeth.” This kind of plea is unsubstantial, and in reality it is considered as truly a specious plea. (KātSm 186)

The meaning is that a useless plea, such as a plea relating to the appearance of teeth in a crow, is unsubstantial.

Katyayana himself, likewise, states that when several pleas such as admission and denial are entered with respect to a single plaint, it is a specious plea:

When there is admission with regard to one part of the plaint, a special plea with regard to one part, and denial with regard to another part, it is a specious plea because of mixture. (KātSm 189)

Even if there is a mixture, how can it be a specious plea, because it is possible for the totality of the pleas to cover the entire plaint, since each plea sets aside each section of the plaint?

That is true. For this very reason, in order to justify the fact that it is a specious plea, Katyayana himself says:

Within a single lawsuit, however, the burden of proof cannot fall on both the litigants; both cannot succeed in demonstrating the case; and there cannot be two kinds of proof in a single case. (KāSm 190)

This is the meaning. Proof consists of evidence such as a document. The burden of that, in the case of a special plea or prior judgment, falls squarely on the defendant; in the case of denial, only on the plaintiff; and in the case of admission, however, on no one at all. This will be explained later. And in this way, when there is a mixture of the three pleas apart from admission, the defendant has to present two kinds of evidence and the plaintiff one kind of evidence. When there is a mixture of two pleas apart from admission and denial, then the defendant alone has to present two kinds of evidence. When, on the other hand, there is a mixture of denial and special plea, or a mixture of denial and prior judgment, then the plaintiff has to present one kind of evidence and the defendant one kind. One should not say, “We can go with anything that the rules dictate,” for evidence is presented in order to demonstrate what is to be demonstrated. And in a single lawsuit there is only one thing to be demonstrated by only one litigant. Therefore, it is improper for both to have to present evidence or one to have to present two kinds of evidence, because what is to be demonstrated does not belong to both, given that, when the one thing that needs to be demonstrated by one kind of evidence has been demonstrated, another kind of evidence would be of no use. Even if, however, this flaw is absent in mixing admission with the other kinds of plea, nevertheless, concluding the same lawsuit after the four feet and after just the first half of them is contradictory.⁹⁴ Consequently, here also we have indeed a specious plea. Therefore, it was appropriately said: “it is a specious plea because of mixture.”

Accordingly, in every kind of lawsuit only one plea encompassing the entire plaint should be accepted. When, however, that kind of a plea is totally unobtainable, but only several pleas each covering a single portion of the plaint, then, because there is no other course, he should first establish different plaints in accordance with the pleas in order to remove the flaws in the litigants’ statements, then accept each plea sequentially with reference to the corresponding plaint. Otherwise, there would be no verdict at all in the case. For this very reason it was said: “it is a specious plea because of mixture.” The intention is to state that there is, indeed, a plea once the mixture has been removed in the aforementioned manner.

For this very reason, with regard to this topic Harita states the proper order in accepting the pleas, preceded by the question:

If both a plea of denial and a special plea are given in the same case, or admission accompanied by another plea, which of these pleas should be accepted?

The word “first” is needed to complete the sentence. He states which should be accepted first:

One should know that it is the plea that deals with the more significant amount or where the evidence will bear fruit; such a plea is unmixed. Otherwise…⁹⁵

This is the meaning. When there are several pleas other than admission, the one that relates to the greater amount should be accepted initially. When there are several pleas along with admission, setting aside the admission even though it relates to the greater amount, the other plea should indeed be admitted first, because the evidence does not bear fruit in the case of admission. One should not assert:

This statement only refers to the case where several pleas that cover the entire plaint are presented at the time for entering a plea. Here is such an instance: “Some man has seen my lost cow in this individual’s house.” When he is so accused, he says: “That is false. She was born in our very house”—or something like that. The reason is that otherwise there would be the fault of having to supply a word denoting a sequence.

It is for this reason that it is said: “such a plea is unmixed; otherwise….” The meaning of this is as follows. When there is this kind of sequence, the plea is unmixed. Otherwise, namely, when they are simultaneous, the plea is indeed mixed. In the case where several pleas cover the entire plaint, however, pleas that have optional references, there is no occasion at all for a mixture. Therefore, this statement refers only to a mixed plea. For this very reason, Harita himself has introduced another statement with reference to several pleas covering the entire plaint:

Between a plea of denial and a special plea also the special plea should be accepted.

This is because a special plea has greater weight than a denial, for reasons such as the fact that the former cannot be proven in any other way. That is its import. Therefore, given that denial and special plea are simply examples, it should be inferred that even when other kinds of plea are entered simultaneously, the one with the greater weight should be accepted.

Where, however, in a mixed reply the reason for the order given above does not exist because the replies are of equal weight, there too a plea should be accepted following the order that one prefers, because it is necessary to arrive at a verdict.

The plea, as described above, should be entered by the defendant on his own. Accordingly, Harita states:

In that regard, the defendant is obliged to enter a plea that corresponds to the accusation, a plea that addresses the complaint adequately and is free from any sign of flaw.

When, however, the defendant does not present a plea on his own and the time for entering a plea has elapsed, Harita himself states what must be done:

When he does not offer a plea to the plaint in accordance with the complaint, the defendant should be compelled to offer a plea by strategies such as conciliation.

“Should be compelled” by the king—that completes the statement. Accordingly, Narada states:

He should offer a plea corresponding to the complaint. When he does not, the king should compel him to offer one by methods such as conciliation and dissension until that complaint has been properly addressed.

Harita describes conciliation and the rest:

Conciliation is speaking kindly. Dissension is instilling fear. Giving is taking away money. Force is beating and binding.⁹⁶

Likewise, Vasistha also says:

Trickery, conciliation, dissension, force as the fourth, deception, forbearance, and illusion are said to be the seven strategies.

With regard to a situation when these strategies prove futile, Vasistha himself says:

When, however, someone does not offer a plea even after being compelled by these strategies, it is proper to declare him defeated after seven days have elapsed.

7. Burden of Proof

[Vyavahārakāṇḍa, pp. 113–23]

On this topic, Brihaspati states:

Among those who stand in the court, however, the assessors, after recounting the plea correctly, should assign the onus of proof to one litigant. (BṛSm 1.4.2)

The meaning is this. From the midst of those who are present in the court of law, the assessors should allocate the onus, that is the burden, of proof to one, either the plaintiff or the defendant. Likewise, Katyayana says:

When, after it has been corrected, the flawless plea has been properly written down in that manner, the plaintiff or the defendant is required to put forward the proof. (KātSm 212)

The meaning is this. The person who has to demonstrate his case, whether it is the plaintiff or the defendant, immediately after the proper plea has been entered, should write down the evidence so as to demonstrate what needs to be demonstrated. Likewise, Yajnavalkya says:

Immediately thereafter, the plaintiff should have the evidence he will use to prove what is alleged in his plaint written down. (YDh 2.7)

The meaning is this. Immediately after a successful plea has been entered, the litigant who has the burden of proving his case should disclose the evidence. Anticipating the question as to what that evidence might be, Yajnavalkya himself states:

Document, enjoyment, and witnesses, it is declared, constitute evidence; and, in the absence of any one of these, one of the ordeals. (YDh 2.22)

An ordeal consists of the balance and the like. Narada, likewise, states:

Evidence, however, is said to be of two kinds: human and divine. The human, it is stated, is by means of documents and witnesses, and the divine by means of the balance and the like. (NSm Mā 2.28)

The meaning is that the human is said to be by means of documents and witnesses, and by means of enjoyment, because enjoyment is also related to human beings. For this very reason, Brihaspati states:

The human is said to be of three kinds: witnesses, documents, and inference. (BṛSm 1.4.8)

“Inference” is enjoyment, because it intimates ownership.

[section from p. 114, line 9 until p. 119, line 12 is omitted]

Brihaspati states:

In a plea of prior judgment and special plea, the defendant himself should prove the contents of his plea, while in a plea of denial the plaintiff should prove the contents of his plaint. (BṛSm 1.4.11)

The meaning is this. Given that in a plea of denial there is no admission, the contention in the plaint has the character of the issue to be demonstrated, and therefore the plaintiff himself should demonstrate the contention in the plaint. In a special plea, however, the contention in the plaint, because it is admitted, loses its character of the issue to be demonstrated, and therefore the man filing the plaint does not have to demonstrate the contention in the plaint. On the contrary, the defendant has to demonstrate through evidence the special plea presented in the plea but not admitted by the plaintiff. For this very reason, Katyayana states:

After first acquiescing, if he states another special plea of greater weight within his rejoinder, it is the latter that has to be demonstrated, not the former.⁹⁷ (KātSm 191)

After first acquiescing, that is, agreeing to what the plaintiff has said, if the defendant states within his rejoinder, that is, within his plea, another special plea of greater weight, that is, able to trounce the contention in the plaint he had agreed to, a special plea such as the fact that it was returned, then it is the latter that he has to demonstrate, because the plaintiff has not agreed to that. The plaintiff need not demonstrate the former, that is, all the contentions contained in the plaint that the defendant had agreed to. That is the meaning. The expression “after acquiescing” is used as a synecdoche. Therefore, even when, after saying that what the plaintiff has said is false, he presents a special plea, it is the special plea alone that must be demonstrated, because of Harita’s statement:

Between a plea of denial and a special plea also, the special plea should be accepted.

Likewise, Harita himself has stated that in a plea of admission neither of the litigants has to present evidence:

In a plea of prior judgment and special plea, however, the defendant should present the evidence, while in a plea of denial the plaintiff should do so. In a plea of admission, no evidence is presented.

This is because the nature of the issue to be demonstrated is absent in both the plaint and the plea—that is the intent. Consequently, when there is an admission the legal proceeding has only two feet. Accordingly, Katyayana states:

In a plea of denial, one should know, the judicial proceeding has four feet, as also in a special plea and plea of prior judgment, while it has two feet in an admission. (KātSm 245)

In a plea of admission, therefore, because the presentation of evidence and so forth are absent, the judicial proceeding comes to a conclusion at the end of the plea.

In like manner, it should be ascertained that in pleas of denial and special plea the evidence can be both human and divine, whereas in a plea of prior judgment only human; in an admission there is no evidence at all. Brihaspati states that even in pleas of denial and special plea, in some cases there can be no divine evidence:

In verbal assault and a dispute about land, divine evidence is prohibited. (BṛSm 1.4.13)

The intent, therefore, is that in these cases one should not prescribe such evidence. For this very reason, Katyayana states:

In verbal assault and in the case of land he should not prescribe an ordeal. (KātSm 239)

Is it not true that Katyayana himself has prescribed an ordeal in the case of verbal assault in the following verse?

When a lawsuit relating to violence and verbal or physical assault has commenced, and in lawsuits arising from the use of force, one may use witnesses or an ordeal. (KātSm 229)

True, it was so stated, but that referred to cases of extreme assault. This, however, refers to cases of minor assault. So there is no contradiction at all. “Land” is used here as a synecdoche to refer to immobile property. For this very reason, Pitamaha states:

He should avoid ordeals in lawsuits involving immobile property. He should settle these by means of witnesses, a document, and enjoyment.

In such cases, one should understand that when human evidence is not available, a verdict should be arrived at through inference, and when that is not possible, through a royal command. Accordingly, in order to give the restrictive rule on the use of ordeals on some occasions, Pitamaha himself says:

Even when witnesses are present, the king should examine a lawsuit concerning accusations of a great sin and the theft of a deposit by means of ordeals.

Katyayana also states:

Also, when there is parity among the witnesses, he should establish innocence by means of ordeals. Or, in a lawsuit involving the death penalty, when the litigant resorts to an ordeal even though witnesses are available, the judge should not question the witnesses. (KātSm 232)

Brihaspati also states:

When a doubt arises about a document or the testimony of a witness, and when the inference is beset with uncertainty, an ordeal is the means of establishing innocence. (BṛSm 1.4.17)

Inference is enjoyment and a reason, such as having a firebrand in the hand.⁹⁸ Vyasa so states:

“I did not execute this document. It is a forgery produced by someone else.” When the paper has been discounted in this way, the verdict in the case is arrived at through an ordeal.

The meaning is that, in a lawsuit where a verdict must be rendered, he should give a verdict through an ordeal. Katyayana also states:

If a document that had been read to the king is found to contain deception, the king, occupying the seat of dharma, should establish innocence by means of an ordeal. (KātSm 238)

Likewise, in order to give the restrictive rule on the respective cases where a document, enjoyment, and witnesses are to be used when they are available, Katyayana himself states:

When something is said to be a bylaw of an association, guild, company, and the like, the means of proving that is a document, not an ordeal or witnesses.

In cases relating to the construction and extent⁹⁹ of gateways and paths, to waterways, and the like, enjoyment alone is the stronger evidence, not documents or witnesses.

Not giving what one promised to give, decisions relating to masters and servants, those relating to not delivering an article after it has been purchased, not paying the money after purchasing, gambling, and betting—when a dispute has arisen with regard to these, the means of proof is said to be witnesses, not an ordeal or a document. (KātSm 225–28)

That the differentiated application of the modes of proof enunciated above should be strictly adhered to by the investigators is stated by Narada:

Those knowledgeable in modes of proof should carefully adhere to the modes of proof, for modes of proof become ruined by modes of proof that are not differentially applied. (NSm 1.64)

The meaning is this. By modes of proof that are not differentially applied, the authors of the modes of proof come to ruin. Therefore, experts in assigning the burden of proof should assign the burden of proof while thinking: “Here, which mode of proof should be written down with reference to whom?”

In this regard, some self-appointed experts have said: “The statement regarding documents and the like with respect to immobile properties is not intended to be a restrictive rule with respect to the modes of proof. On the contrary, its aim is to point out the customary practice. Otherwise, when for some reason a document or the like is destroyed, it would be impossible to render a verdict.” This is incorrect, because, even if it presents a restrictive rule, it is possible to render a verdict through judicial reasoning or by the order of the king. For this very reason, Pitamaha states:

In a case where there is no document, enjoyment, or witnesses, and an ordeal cannot be resorted to, the king is the authority.

In litigations full of uncertainties where it is not possible to render a verdict, the king is the authority, because he is the lord of all.

For this very reason, after stating the visible and invisible modes of proof, Vyasa states:

In the absence of these, however, wise men state that the verdict is the order of the king.

The meaning is that when modes of proof are not available, either because they are really absent or because of a prohibition, the verdict is based on the king’s order.

8. Evidence

[Vyavahārakāṇḍa, pp. 123–24]

On this topic, Brihaspati states:

After hearing the plaint and the plea, the party to whom the assessors assign the proof should prove his complete assertion by means such as a document. (BṛSm 1.4.5)

“Proof” means evidence. Narada also states:

Once the charge and counterdocument have been written down fully letter by letter, in the third foot the plaintiff should establish it through evidence. (NSm Mā 2.27)

“Charge” means the plaint. “Counterdocument” is what has been written down to challenge the plaint; that is, the plea. “The third foot” is the one called burden of proof. “Evidence” means mode of proof. So, this is its meaning. When the three feet— plaint, plea, and burden of proof—are set, he “should establish it through evidence,” that is, the plaintiff should demonstrate his case through a mode of proof. Vyasa gives the meanings of the terms “case” and “evidence”:¹⁰⁰

“Case,” they say, is what is to be demonstrated, while “evidence” is said to be the means of proof. The latter, one should know, is divided into two: human and divine.

Brihaspati also gives the divisions of evidence:

Evidence is said to be of two kinds: human and divine. Each of these is divided into many types by sages who know the truth. (BṛSm 1.4.6)

Katyayana also states:

The divine is of five types and the human is stated by texts of recollection to be of three kinds. (KātSm 220)

The statement “of five types” is not intended to be a limitation, because another text of recollection presents other kinds of ordeals also, such as rice and heated Māṣa coin. The statement “of three kinds” is clearly intended to be a restrictive rule, because it is not controverted by other texts of recollection. For this very reason, the statement is worded here: “is stated by texts of recollection to be of three kinds.” The following statement of Narada, on the other hand, is not intended to restrict the number:

Here two procedures have been declared: document and witnesses. (NSm Mā 1.3)

If that were the case, it would result in being contradicted by his statement:

Texts of recollection lay down three kinds of evidence: document, witnesses, and enjoyment. (NSm 1.65)

Consequently, one must understand that the statement “two procedures have been declared” was made in order to assert that the two other than enjoyment have a larger scope.¹⁰¹

9. Verdict

[Vyavahārakāṇḍa, pp. 281–90]

Next, what must be done at the beginning of the verdict. On this topic, the author of the Saṃgraha states:

When the evidence has been presented according to his wish following the prescribed methods, the king along with the assessors should examine it and determine victory and defeat.

The person who, by means of any one of the prescribed kinds of evidence, demonstrates his case covering the plaint completely is the victor.

When a person fails to demonstrate or demonstrates the case opposite his own, or when a flaw is seen in his evidence, however, he is the loser.

On this, Vyasa states:

The king, however, should punish the man who was defeated and pay honor to the victor. Even when they are not defeated, those who oppose Vedic scripture should be punished.

Honor should be carried out with perfumes, garlands, clothes, and the like, because Vyasa himself states in his text of recollection:

Honor is paid to the victor with perfumes, garlands, clothes, and the like.

Katyayana gives what is to be done after paying homage:

The litigant, after being commended, should be entrusted with the claim that he has succeeded in demonstrating. The king should give him a document signed by his own hand. (KātSm 262)

Narada also states:

The article, whether mobile or immobile, that had been placed in the middle should be given to the victor along with interest and the paper.

“Paper” means the victory document. Brihaspati, likewise, states:

When the king hands over to the victor a document containing the plaint, plea, and evidence, and concluding with the verdict, it is called a victory document. (BṛSm 1.6.26)

All that has to be stated in a victory document has been given in the rules regarding documents, and should be reviewed here.¹⁰² With regard to the statement: “should be entrusted with the claim that he has succeeded in demonstrating,” Yajnavalkya has given a special feature in some contexts:

In case someone denies a written plaint containing several parts and the plaint is later proven with regard to one of its parts, the king should make him pay all the claims; he may not, however, recover a claim not recorded in the plaint. (YDh 2.20)

This is its meaning. When the defendant denies the content of the document executed at the time of the plaint, a document containing several items such as gold coins, clothes, and ornaments, saying, “That is false,” and the plaintiff proves a portion of its contents using evidence only for one portion of it, making the defendant agree to that, saying, “True, I took it,” then the king should make him return to the plaintiff all the claims contained in the plaint. Thus, a property that was not written in the plaint but was later orally stated by the plaintiff should not be seized by the king as something that must be returned.

What the text says comes down to this. In this kind of situation, the king should disregard the statement: “Discarding subterfuge, the king should conduct judicial proceedings in accordance with the facts” (YDh 2.19), because here it has been demonstrated that the man had a crooked intention. One should not argue that, following the statement on subterfuge, the king should disregard even compelling the payment of the whole amount. This is stated by Katyayana:

When an accused denies everything and then mutually acknowledges even a small amount, the defendant should be compelled to pay the whole amount: that is the view of Brihaspati. (KātSm 474)

Brihaspati is mentioned as a sign of respect. Narada also, in order to show that he should attend to compelling payment of the whole amount, states the obligation of the accused to pay:

When a man who has been accused with regard to several points denies everything, and one portion of the accusation is demonstrated, he should pay the amount he is accused of. (NSm 2.6 variant)

Is it not true that, should the aforementioned meaning be expressed by the ancient texts, it would preclude their having a meaning leading to a verdict in accordance with dharma, because they would then express a verdict in accordance with legal procedure by following subterfuge?

True, but even then there is no fault, because in the aforementioned matter a verdict in accordance with legal procedure bars a verdict in accordance with dharma. For this very reason, Brihaspati states:

Where a verdict is reached based solely on an authoritative text, it should be known as legal procedure; by that also dharma is annulled. (cf. BṛSm 1.1.19; DhKo I: 100)

“Where” refers to the aforementioned matter and the like.

The following statement of Katyayana, however, refers to a situation where one is not completely certain about the presence of crooked intentions:

Even in an accusation consisting of several points, as much as the creditor proves by means of witnesses, only that much money—what he has proved—does he receive. (KātSm 473)

The reason for this is the fact that, unlike in the ancient texts,¹⁰³ here there isn’t a portion that reveals the defendant’s crookedness characterized by the denial of everything.

Some argue that this statement refers to the debt of the father and so forth that is to be paid by a son and so forth, because only in such a circumstance do the three kinds of plea “I do not know anything about this” (KātSm 169) become possible.¹⁰⁴ That is not correct, because (i) even in a dispute regarding a debt contracted by oneself, the three kinds of plea are possible for reasons such as forgetfulness; and (ii) even when a statement of denial is made by a person such as the son in a lawsuit concerning a debt contracted by a person such as the father, making a plea of denial, “That is untrue,” what is entailed is the payment of only the amount that has been demonstrated.

It may be argued, further, that it is not possible for an individual such as the son to enter the plea, “That is untrue.” Do not say that, because that is possible for one who had attained the age of reason at the time the loan was taken, and even for one who had not attained the age of reason at that time through the testimony of a person such as his mother.

It may be argued, further, that the statement about receiving only the amount that has been demonstrated is made with reference to a person such as the son who makes the plea: “I do not know anything about this” (KātSm 169). Then you should consider that the statement is in fact referring to three kinds of plea, beginning with “I do not know anything about this.” What is the point in restricting it to persons such as the son?

Now, it may be argued that it refers to persons such as a son because a text of recollection states: “In a plea of denial, sons and grandsons should pay a debt that has been established through witnesses” (YDh 2.50). Then it should refer to persons such as a son who plead, “That is untrue,” but not to persons such as a son who plead, “I do not know anything about this,” because the text of recollection states: “In a plea of denial…that has been established through witnesses.”

Others, however, settle it in a different way:

The statement about forcing someone to pay the entire amount claimed refers to a plea of denial combined with an arrogant proclamation such as this: “If the plaintiff demonstrates even one claim among all the claims contained in the plaint, then I will pay all those claims!” The statement about receiving only the amount that has been demonstrated, on the other hand, is made with reference to a plea without such a proclamation.

This is also incorrect, because the statement: “In case someone denies a written plaint containing several parts” (YDh 2.20) is made without any restriction.¹⁰⁵ It is not correct to assert that, because this statement is intended to be illustrative of subterfuge (YDh 2.19), the reference to a denial with an arrogant proclamation is resorted to so as to demonstrate that. This is because (i) after taking up the subterfuge consisting of denying everything, it presents the conclusion of the judicial process; and (ii) this by itself demonstrates the fact that the statement is intended to be illustrative of subterfuge.

By force of the plaint itself, in the aforementioned context the payment of the entire amount is enforced. Consequently, statements such as: “In case someone denies” (YDh 2.20) are explanatory reiterations.¹⁰⁶ Therefore, both statements should have the very same meaning.

Nor is it correct to say that one resorts to the above explanation to resolve statements such as that of Katyayana: “Even in an accusation consisting of several points, as much as the creditor proves” (KātSm 473), because their contradiction is resolved in a straightforward way.

Enough of this presenting and refuting various views that cause prolixity!

The manner of enforcing payment is pointed out by Katyayana:

The king, however, should make a Brahman pay the creditor by using only gentle words, while he should force others in accordance with the regional custom, and evil persons by using physical force. He should make a coparcener or a friend pay through subterfuge. (KātSm 477–78)

Not only should the king enforce payment to the creditor; he should also extract a fine for himself. This is stated by Narada:

When, however, a wealthy debtor does not pay because he is mean spirited, the king should compel him to pay after taking one-twentieth for himself. (NSm 1.113)

The meaning is that he should take from the debtor money equal to one-twentieth portion of the money that he is compelled to pay. This, furthermore, refers to a debtor who has admitted his debt. In the case of a debtor who has denied his debt, however, Vishnu states:

If the creditor files a complaint with the king and proves that the debtor is guilty, the debtor should pay the king a fine equal to one-tenth of the amount, while the creditor who has obtained his money should pay one-twentieth. (ViDh 6.20–21)

The one who has obtained his money pays as fee for obtaining payment and not as a fine, because he is not guilty of a crime.

With regard to a case when the debtor files a complaint with the king, Manu states:

When someone reports to the king a creditor seeking to recover a debt on his own initiative, he should compel him to pay the money to the creditor, as well as one quarter of the debt. (MDh 8.176)

The meaning is this. A debtor who is a king’s favorite, thinking: “I will cause an obstruction through the king’s order,” reports to the king—that is, informs him, saying: “He will harass me”—a creditor “seeking to recover”—that is, who has set out to demand the money he has lent—“on his own initiative”—that is, “according to his own wish.” When this happens, the king should force him to repay the debt and pay a fine as well equal to one quarter of it.

Now, with reference to what Manu himself has stated:

The amount that one man falsely denies and the amount that the other falsely claims—the king should impose a fine equal to double those amounts on those two men who are proficient in adharma. (MDh 8.59)

—Manu’s commentary notes that it refers to a debtor and creditor who are haughty, because the text uses the expression: “who are proficient in adharma.”¹⁰⁷

With reference to what Yajnavalkya has stated, however:

When, after a denial, the charge against him has been proven, he should give the sum claimed and an equal amount to the king. (YDh 2.11ab)

—it should be regarded as referring to a situation where a haughty debtor does not have funds adequate to meet the aforementioned fine, because otherwise it would be difficult to avert a conflict with the statements of Visnu and Manu given above. The man who brings a false accusation, on the other hand, even if he does not have sufficient funds, is not fined an equal sum.¹⁰⁸ As to what Yajnavalkya himself has stated, however—

A man who files a false accusation should bear twice the sum listed in the accusation. (YDh 2.11cd)

—its meaning is as follows. He should “bear,” that is, pay the king, “twice the sum listed in the accusation,” that is, “twice the amount contained in his accusation.” When that amount of money is unavailable, one must take into consideration a secondary alternative, such as: “he should acquit himself of debt through work” (MDh 9.229).¹⁰⁹

As to what Narada has stated, however:

One must not file a false accusation. One who files a false accusation becomes guilty. The fine prescribed for such as accusation falls on the man filing the accusation. (NSm Mā 1.50)

—given that it is an injunctive text of a generic nature, it refers to cases where no punishment is prescribed within the context of individual subjects of law. It should be understood, therefore, that the same fine prescribed by Visnu in the case of a plea of denial by a dishonest person applies also to an honest person making a false accusation. Likewise, it should also be understood that the same fine prescribed by Vyasa in the following statement applies also in the case of a false accusation to a person who himself admits it as such:

In a plea of denial, however, when the defendant admits it himself, that should be recognized as an admission. It is said that half the chastisement is applied to him. (DhKo I: 545)

Now, with reference to what Manu has stated:

If a man denies a loan, however, and it is established by evidence, he should compel that man to return the loan to the creditor and in addition impose a small fine proportionate to his means. (MDh 8.51)

Manu’s commentary notes that it refers to an honest debtor who is unable to pay a fine of one-tenth.¹¹⁰ In saying “by evidence,” Manu shows that in a lawsuit consisting of two feet,¹¹¹ however, only the payment of the loan is enforced, not the payment of a fine, because in such a case the plea of denial and false accusation are absent. In the same manner, one must conclude that even in a lawsuit with four feet, when a plea of denial and false accusation are absent by reason of an accusation based on suspicion, a plea of ignorance, and the like, there is no fine.

As to what is stated in a text of recollection:

In the first foot the fine is one-quarter; in the second, one-half; in the third, three-quarters; and in the fourth, he receives the full fine.

—the teacher Visvarupa has explained in detail that it lacks authority because it is contradictory.¹¹² Therefore, one should recognize a fine occasioned by a plea of denial or a false accusation only in a lawsuit containing four feet when a proper reason for it exists. In this regard, the specific fine in a lawsuit pertaining to the nonpayment of a debt has been pointed out. In a lawsuit pertaining to deposits and the like, however, the specific fine will be stated within each respective subject of litigation.

Now, as to what Katyayana has stated:

He should compel a man found to be innocent to pay fifty, while a man found to be guilty is subject to a fine. (KātSm 459)

—it refers to a man who has been determined to be innocent through a specific ordeal. For this reason, immediately thereafter Katyayana himself states:

In ordeals of poison, water, fire, balance, holy water, rice, and hot gold coin, he should prescribe a fine in the following order: 1,000, 600, 500, 400, 300, 200, and 100. In this manner, he should prescribe lower fines for lower kinds of ordeals. (KātSm 460–61)

This fine connected with an ordeal, furthermore, is combined with the fine connected with either a plea of denial or a false accusation, because there is a combination of the causes of the fines.

Yajnavalkya, however, states that the wager is combined with the fine prescribed in the authoritative texts:

If the litigation includes a wager, then the court should make the defeated party pay both the fine and the wager, as well as return the sum claimed to the creditor. (YDh 2.18)

Narada also states:

In a suit that includes an additional wager, of the two parties, the one that loses should be made to pay the wager he has made and also the fine for defeat. (NSm Mā 1.5)

In this regard, Katyayana states:

In this manner, the person occupying the seat of dharma, being totally impartial toward the litigants, should render a verdict in lawsuits along with Brahmans, and not otherwise. (KātSm 475)

Brihaspati also states:

The king should diligently investigate doubtful cases. There three prosper, while harm is done to one.

The winner obtains money and honor; the defeated undergoes chastisement and detention; the king gains victory, gifts, and fines; and the assessors acquire merit. (BṛSm 1.9.30–31)

Narada also states:

When a king, self-possessed, always tries lawsuits in that manner, he will spread his blazing fame wide in this world and attain the same world as Indra. (NSm Mā 1.65)

Brihaspati also states:

A king, by upholding in this manner the verdict as described in authoritative texts, after spreading his fame in this world, will become a minister of great Indra.

A king, by arriving at a verdict through witnesses, documents, and reasoning, after spreading his fame in this world, will reach the crest of the sun. (BṛSm 1.9.32–33)

Manu also states:

When he controls love and hatred, however, and looks into cases in accordance with dharma, his subjects follow him, like rivers the ocean. (MDh 8.175)

When, however, a king foolishly judges cases in a manner contrary to dharma, his enemies will soon bring that evil man under their dominion. (MDh 8.174)

10. Retrial

[Vyavahārakāṇḍa, pp. 300–4]

On this topic, Narada states:

Among women, at night, outside the village, inside a house, and between enemies— a legal transaction between these, even when done, should be subject to being redone. (NSm Mā 1.37)

This is the meaning. A lawsuit decided by women or enemies, or in secret, should be subjected to a new investigation because of the possibility that it was based on ignorance or partiality.¹¹³ Thus, after annulling what has been decided by force, or through fraud by reason of love, hatred, and the like, another legal proceeding should be instituted. Accordingly, Yajnavalkya states:

He should annul legal actions carried out by force or fraud. (YDh 2.31)

What is intended is that thereafter he should institute another legal proceeding. Likewise, Yajnavalkya himself states that the same should be done also when those conducting the legal proceeding do not possess the required qualities:

A legal action undertaken by someone who is intoxicated, insane, afflicted, in distress, a child, or frightened, or by a similar individual, as well as one executed by an unrelated person, is invalid. (YDh 2.32)

The expression “or by a similar individual” includes lawsuits filed by old people and the like. For this very reason, Manu states:

A legal action undertaken by persons who are intoxicated, insane, distressed, or totally subservient, by children or the aged, or by unrelated persons, is invalid. (MDh 8.163)

“Unrelated persons” refers to those who have no relationship to the plaintiff or the defendant. Narada also states:

A lawsuit that is opposed to the interests of the city and country or that has been proscribed by the king is inadmissible—so have those who know dharma declared. (DhKo I: 115)

Harita also states:

All these suits are said to be inadmissible: one that is proscribed by the king, one that is hostile to the inhabitants of the city, to the entire country, as well as to the major constituencies of the state; as also those hostile to the prominent men of a city or a village. (DhKo I: 564)

So, one must conclude that the ultimate intent is that, after annulling such a lawsuit even if it has been adjudicated or even if it has been judged, another legal proceeding should be instituted. Katyayana gives the distinction between “adjudicated” and “judged”:

When one party is determined by the assessors alone to be stating either the truth or a falsehood, it is said to be “adjudicated,” and when it is done on the basis of the testimony of witnesses, it is said to be “judged.” (KātSm 495)

The meaning is that when it is determined on the basis of the testimony of witnesses it is “judged.” Now, with reference to what Manu has stated:

Wherever something has been adjudicated and judged, he should recognized it as executed according to dharma. He should not bring it back again. (MDh 9.233)

—it should be regarded simply as a general rule referring only to contexts where there are no reasons for annulment, such the fact that it was done by a woman. For this very reason, Brihaspati gives an exception to it:

When someone is not satisfied, however, even after a decision has been reached by a family and the like,¹¹⁴ the king should investigate how it was carried out and take up again for review one that has been badly conducted. (BṛSm 1.9.23)

The meaning is this. Even when it has been decided by authorized adjudicators, if a litigant thinks that the lawsuit has been resolved illegally, then a retrial should be instituted.

When it has been determined that the suit was wrongfully conducted, Narada declares the fine for those who carried out the previous trial:

When a lawsuit has been improperly tried, however, a fine should be imposed on those assessors, for without a fine no one will ever keep to the proper path. (NSm Mā 1.57)

It should be understood, however, that this fine is for the assessors only when the victorious party did not contribute to the wrongful conduct of the trial. If he did contribute, then he too should be fined. Accordingly, Brihaspati states:

After arriving at a determination along with many Brahmans accomplished in authoritative texts, he should fine the previous assessors who are guilty, along with the victorious party. (BṛSm 1.9.24)

Yajnavalkya states that the imposing of a fine, including upon the victorious party, is to be carried out strictly in the manner stated in the topic dealing with the fining of assessors:

After subjecting lawsuits that have been wrongly tried to a new trial, however, the king should punish the assessors along with the victorious party with a fine that is twice the amount in dispute. (YDh 2.305)

The meaning is this. “That have been wrongly tried” through the fault of the assessors along with the victorious party.

When, however, the legal proceeding becomes vitiated due to the fault of the witnesses, then the witnesses alone are subject to fines in the manner stated in the topic dealing with the fining of witnesses, and not the victorious party or even the assessors. The intention is that when, furthermore, it is caused by the faults of the victorious party and the witnesses, then only they are subject to fines, not the assessors. Thus, a retrial simply on the basis of dissatisfaction should be ordered when the original verdict has merely an appearance of legality. With respect to a case where proper legal process was followed, Narada states:

When someone thinks that a case has been adjudicated and a verdict rendered against the provisions of dharma, he may have that case tried again after agreeing to pay a double fine. (NSm Mā 1.56)

“Against the provisions of dharma” means what is done contrary to the provisions of treatises on dharma. When a litigant arrogantly thinks thus even with regard to a properly decided case—that is the meaning. Here, given that it is impossible for the determination of the lawsuit to be overturned, even after the retrial one should indeed impose the fine that the man defeated in the prior trial has agreed to pay. This has been stated by Yajnavalkya:

When a man who has been defeated according to proper procedure but still thinks, “I am not defeated,” returns and is defeated again, he should be assessed a double fine. (YDh 2.306)

Thus, a retrial accompanied by a fine takes place only in the higher court presided over by the king, because only the king has the authority to impose the fine. In a higher court without the king, however, a retrial should be carried out without a fine, because the part consisting of the fine can only be carried out by the king. That the higher court is superior to the lower courts, furthermore, is necessary, for otherwise doubts would not be resolved. The relative superiority of assessors, moreover, has been pointed out in the section dealing with the determination of adjudicators.¹¹⁵

When one suspects that a trial carried out in a king’s court was wrongly tried, however, a retrial may be conducted in the court of another king who is of superior quality. Accordingly, a text of recollection states:

When another king has through ignorance rendered a verdict without conforming to legal process, that too, carried out illegally, should be subject to a retrial.

Now, with reference to what Pitamaha states:

What has been decided in the village may be appealed to the city. What has been decided in the city, however, may be appealed to the king. When something has been decided by the king, whether it is decided properly or improperly, there is no further appeal.

—it refers to a situation when another court that is superior to the lower court is not available. When a person is defeated by reason of his own statements, however, there is no retrial even when a superior court is available. This is stated by Narada:

For those who have lost their cases because of witnesses or assessors, there may be a retrial when a flaw is detected, but for those who are defeated by reason of their own statements the reinstitution of the legal process is not permitted. (NSm Mā 2.40)

The meaning is this. For those who have suffered defeat because of a verdict either made on the basis of the testimony of witnesses or made solely by the assessors, it is possible to have a retrial of the lawsuit when there has been a flaw in the previous trial. The use of the term “assessors” is meant as a synecdoche to include ministers and the like. For this very reason, Manu states:

If a minister or a judge settles a case wrongly, the king himself should settle it and fine him 1,000. (MDh 9.234)