22

22. (The plaintiff) may amend the plaint while the answer has not been delivered. When the plaint has been answered, the corrections must cease.

1. When a plaint of this description has been tendered by the plaintiff, the defendant shall deliver an answer corresponding to such plaint.

2. That is called a (true) answer by those ac- quainted with the subject, which meets the plaint, and is concise, clear, consistent, and easily intelligible without an explanation.

3. If a man's courage fails him when he is about to make a statement in a lawsuit, a delay must be

21. Smr/ti^. upeksha yatra sadhyasya \msa.tm daja va sama^ I jaktenapi kn'te vade tasya paksho mr/sha bhavet 11

Ill, I. Smrz'ti^.; Raghunandana, pp. 12, i6 ('Brzliaspati').

2. M. Macn. I, 5, 3 (uncertain); V. T., &c.

3. Smr/ti>^. matir notsahate yasya vivade vaktum U:k/ia,t2i/i I datavya eva kihh sySd arthipratyarthinor api ll

granted to him (by the judge), whether he be plain- tiff or defendant.

4. When the defendant contradicts the charge, such an answer is termed a denial in a cause.

5. When, the plaint having been reduced to writ- ing by the plaintiff, the defendant admits it but adduces some special circumstance, it is called a (retort in the form) pratyavaskandana (special plea).

6. That (answer) is no (true) answer which is dubious, not to the point, too narrow, too extensive, or meeting one part only of the plaint.

7. An answer which treats of a different subject, or which is incomplete, or couched in obscure lan- guage, or confused, not intelligible without an ex- planation, or unreasonable, will never enable (the defendant) to gain his cause.

4. Raghunandana, p. 17; M. Macn. I, 5, 7, &c. (' Katyayana').

6. 7. V. T.; M. Macn. I, 5, 1 1. 'Dubious,' as when (the plaintiff) having declared: This man has received a hundred Suvarwas from me, (the defendant repHes): Yes, I have received a hundred Suvarwas or a hundred Mashas. ' Not to the point,' as when a debtor being sued for a hundred Suvar«as, replies that he has re- ceived a hundred Pa«as. ' Too narrow,' as when (a debtor) being sued for a hundred Suvarwas, replies that he has received five. ' Too extensive,' as when (a debtor) being sued for a hundred Suvarwas, replies that he has received two hundred. ' Meeting one part only of the plaint,' as when (a debtor) being sued for gold, clothes, and other objects, replies that he has received gold but nothing else. 'Which treats of a different subject,' as when an action for debt is answered by referring to a different title of law, e. g. when a man being sued for a debt of a hundred Suvar/zas, replies. He (the plaintiff) has struck me. ' Incomplete,' not con- taining any reference to the particulars of country, place, and so on, as when the plaint states a certain field situated in the central country (Madhyadej-a) near Benares, towards the east of it, to have been seized by the defendant, and the defendant replies merely, ' I

8. In the case of a denial, the burden of proof rests with the plaintiff; in the case of a special plea, (it rests) with the defendant.

9. Let (the plaintiff) make an answer which corre- sponds to (the contents of) the plaint. If he does not (make an answer), the king shall cause him to make one, by employing (any of) the (four) methods of conciliation, division, and the rest, till the matter has been cleared up.

10. When, in the case of a denial (on the part of the defendant) the plaintiff himself admits such (denial) as correct, it has to be considered as a con- fession, and one half of the (ordinary) fine shall be inflicted on the plaintiff.

Ti. In the case of a denial, the burden of proof rests with the plaintiff; in the case of a special plea,

have taken it.' * Couched in obscure terms,' as when in a suit for a hundred Suvarwas the defendant exclaims, ' Am I the only person indebted to this man? ' implying by his speech that the chief judge, or assessors, or plaintiff, is indebted to another man. 'Confused,' inconsistent, as when in an action for a hundred Suvarwas the defendant declares, * Yes; I have received that sum, but I do not owe it.' ' Not intelligible without an explanation,' owing to the use of wrong inflections, compounds, or constructions, or to the employment of a foreign language. ' Unreasonable,' contrary to common sense, as when the plaint runs as follows: The defendant has received a hundred Suvarwas from me, repayable with interest, and has paid the interest only, and not the principal; and the de- fendant replies: 'Yes; I have paid the interest, but have not received the principal.' M.

8. M. Macn. I, 5, 14 (uncertain); May. p. 11.

9. Smri'iik. yathartham uttarawz dadyan na ket tad dapayen nn- paA I samabhedadibhir margair yavat so^rtha^ samuddhnta^ II Bribery and force are the two remaining methods.

10. Smrz'ti^. nihnave tu yadd vadi svayaw tat pratipadyate 1 gneyi sampratipattis tu tasyardho vinayaA smn'ta^ II

it rests with the defendant; but in a plea of former judgment, all that is required in the shape of proof is to produce the previous decree.

12. The defendant is at liberty to delay his answer for three days, or for five days even.

1. A writing (or document) should be signed by witnesses, the (natural) order of ideas and syllables should not be interrupted, local customs and general rules should be observed in it, and it should be com- plete in every respect.

2. A document signed by the king with his own hand, or sealed with his own seal, is declared to be a royal document, and is (considered as equal to) an attested document in all affairs.

3. A document suspected (to have a blemish) is valid, unless the debtor should have clearly indicated its blemish; and so (is the validity of) a document which is more than twenty years old (established by mere lapse of time).

4. In the beginning, gift is a cause (of ownership);

12. Vy. K. pratyarthi labhate kalaw tryahaw pa^/^aham eva va I IV, I. Smrz"ti/^. lekhyaw tu sakshimat karyam aviluptakrama- ksharam i de^aMrasthitiyuta^z samagraw sarvavastushu ti

2. Smrztii^.; Viram. p. 195 (' Vasish//^a ').

3. Smmi/fe.; Viram. p. 200 (* Katyayana '). The validity of a document having been called into doubt, because it either has a blemish or has been vitiated by the lapse of a considerable time, it becomes valid through proof by ordeal. This is the meaning, mere lapse of time being insufficient to produce validity. Smrz'ti^. This interpretation can hardly be correct, as ordeals are not referred to in this text.

4. M. Macn. Ill, 6, 5. In the case of the first man (possessor)

in the middle, possession with a title; but continued and hereditary possession by itself is also a good cause (of ownership).

5. There are six modes of acquiring wealth: by obtaining (property), what is declared to have been given or earned, (acquisition through) valour, (in the shape of) a marriage portion, and through in- heritance from relations or others.

6. Having listened to the answer, (the plaintiff) at the trial shall produce a document as evidence, or he shall prove possession continued for a long time, and corroborated by (the statements of) the neighbours, or by (other) evidence.

7. Supposing a religious student were to perform some vow extending over a period of thirty-six years, or a man (engaged in trade or traffic) were to reside abroad for a long time in the pursuit of wealth:

possession proved by witnesses is superior to, or more decisive than, possession, excepting hereditary possession. Such hereditary possession, again, is superior in the case of the fourth in descent to a title proved by documents. In the case of an intermediate claimant (as e. g. the second or third in descent) a tide coupled with possession of short duration even is more decisive than a tide entirely destitute of possession. M.

5. Smrttik. labdha/« danakriyaproktazw jauryaw vaivahikaw tatha i bandhavadipra^a^dta;?? sha^vidhas tu dhanagama^ II ' Obtaining/ by birth, paternal or other (inherited) wealth; or, obtaining property by finding it, as in the case of treasure-trove. SmrtWk.

6. SmnWk. j-rutvottaraw kriyapade lekhyaw sadhanam uddi.cet 1 samantalakshawopeta bhuktir va ^irakaliki. * The term sadhanam a fortiori denotes witnesses in this place. Therefore the meaning is as follows. In a dispute regarding a house, field, or other (im- movable property), the claimant must adduce a document or witnesses, or he must plead possession.* Smr/tL^.

7-10. Smnti^. brahmaX'ari ^aret kiw/^id vrataw sha/tri;wjadab- dikaih 1 artharthi Hnyavishaye dirghakala;» vasen nara^ II sama-

8. If, then, the student after having completed his period of studentship (and returned from his pre- ceptor) were to look after his property, possession (by a stranger) continued for fifty years would be capable of depriving him of his property.

9. Twelve years for (the study of) each Veda is the period ordained for those engaged in the pursuit of religious knowledge; for those engaged in the acquisition of mechanical (or manual) skill, the period (of apprenticeship) is declared to last till they have acquired their art.

10. What has been possessed against their wish by their friends or relations, and what has been possessed by persons offending against the king, is not lost by the lapse of (a long) time.

I. (By false evidence concerning land, a witness kills everything; beware, then, of giving false evi- dence concerning land.) In the case of (false evidence concerning) water, the consequence is said to be the same as for land, and so it is in the case of carnal connexion with a female, as well as (in the

\n\to vratt kuryat svadhananveshawaw tata^ | pa^/^aj"adabdiko bhogas taddhanasyapaharaka^ II iprntiveda-m dvada^abda^ kalo vi- dyarthinaw smn'ta^ I jilpavidyarthina/;^ ^aiva grahawantaA pra- kirtita^ II suhr/dbhir bandhubhij ^aishaw yat syad bhuktam avax- yatam ( nnpaparadhika/zz >^aiva na tat kdlena hiyate II See Manu III, I.

V, 1-3. Viram. p. 171. See Narada I, 17, 209 (above, p. 92), the text immediately preceding these texts in the Viramitrodaya. I, 3 = Manu VIII, 100, loi. All these texts, up to lo, form part of the exhortation to be addressed to the witnesses by the judge. In 2, I have substituted tathajvavat, the reading of the Tb^/ara- nanda, for tathapnuyat.

case of false evidence) concerning gems produced in water, and everything consisting of stone.

2. In the case of honey or clarified butter (the consequence) is the same as (when false evidence has been given) with regard to small cattle. He incurs the same guilt as in the case of a horse (by giving false evidence) regarding a vehicle. The case of silver, clothes, grain, or the Veda is equal to the case of a cow.

3. Having considered all these evil consequences attending a false declaration, (a witness) must declare openly everything as (he has) heard or seen (it).

4. Kubera, Aditya, Varu;^a, ^'akra (Indra), the son of Vivasvant (Yama), and the (other) guardian deities of the world are constantly looking on with divine eyes.

5. Let (the judge) ask a Brahman for his testi- mony by saying, * Speak;' a Kshatriya by saying, ' Speak the truth; ' a Vai^ya, by referring to his kine, grain, and gold; but a 6'udra (by conjuring him) by all possible wicked deeds.

6. Whatever places (of torment) are assigned (In a future state) to the murderers of Brahmans, or to the slayers of women and children, and to him who betrays a friend, or shows ingratitude, those very places shall be thy home (after death) if thou speakest falsely.

7. All meritorious deeds which thou, O good man, hast done since thy birth, would go to the dogs, if thou shouldst speak falsely.

4. Smnti^. kuberadityavaruwajakravaivasvatddayaA I pajyanti lokapalaf ka, nityaw? divyena ^akshusha II

5-9. Vy.-^. Identical with Manu VIII, 88-92.

8. Although, O virtuous man, thou thinkest of thyself, * I am alone,' yet that says who sees the evil and the good ever resides in thy heart.

9. If thou art not at variance with the god Yama, the son of Vivasvant^ who resides in thy heart, thou needest not go to the Ganges or to (the country of) the Kurus.

10. Perjured witnesses, as well as those who rob others of their property, and wicked kings, shall have to reside (hereafter) in a very dreadful hell for the time of a kalpa.

11. When (a calamity such as) an illness, or fire, or the death of a relative, happens to a witness within seven days after his evidence has been taken, he shall be made to pay the debt and a fine.

12. Learned Brahmans and other such persons (are incompetent witnesses) under a text of law; thieves and the like persons, on account of their notorious perversity; (the deposition of the witnesses is worthless) owing to mutual contradiction when the witnesses make mutually conflicting statements at the trial of a cause.

1 3. ' One who gives evidence of his own accord ' is a witness who comes to make a deposition of his own accord, without being appointed (a witness). Such a man is termed a spy in the law-books, and he is not worthy to become a witness.

10. Smritik. ativanarake kalpaw vaseyu^ ku/asakshi«a^ I para- vittahara ye ^a ra^anaj ^apyadharmika>^ 11 A kalpa is a fabulous period of time, the duration of which is reckoned in various ways.

12-14. Vtram. p. 151. 12, 13 a, and 14 occur in the Minor Narada as well (p. 34), where they come immediately after a text which is identical with Narada I, 12, 157 (above, p. 82).

14. 'One rendered incompetent by intervening decease ' is a witness (who comes) after the death of the claimant, unless he should have been instructed (by the claimant) on his deathbed.

1. Let (the defendant) touch the heads of his sons, wife, or friends; or else the (ordeal by) sacred libation (may be performed), whatever the nature of the charge may be.

2. It is on the claimant that the duty of declaring his readiness to take on himself the penalty (to be awarded to the losing party) devolves in every case. Or the ordeal may be performed by either party at pleasure, the other party consenting to give the penalty (to be awarded in case of defeat).

3. To persons suspected by the king, or denounced (as criminals) by (intercourse with) robbers, or intent on their own justification, an ordeal must be admin- istered without binding (an opponent) to give the penalty.

4. (The performance of) an ordeal is ordained in

VI, I. Viram. p. 226; M. Macn. X, i, 5 (uncertain).

3. V. T.; M. Macn. X, 1,5 a (uncertain). The MitaksharS ex- plains the term sivsih or Jirsha, which has been translated by 'penalty' in this paragraph and in the preceding text, as denoting the head, i.e. the fourth or principal division of a lawsuit, which involves defeat or success, and results in the awarding of a punishment or fine to the losing party. It appears more probable, however, that jiras, ' head,' is an equivalent for ' life,' the accuser having to declare his readiness to risk his life, i. e. a heavy punishment, in case of defeat.

4h Smmii. karawe mahati prokta;« divyaw vadarthinaw nr/«am i f irovarti yada na syat tad^ divyaw na diyate 11 This is apparently the

important cases, when people are engaged in a con- troversy; an ordeal must not be administered when there is no one ready to take the punishment on himself.

5. Justice is based on truth, and litigation (depends) on witnesses. When a case admits of divine test, human evidence (the testimony of witnesses) or documents must not be resorted to.

6. The (ordeal by) sacred libation has been de- clared by the wise to be applicable to all (castes), and poison (to all castes), excepting the Brahman (caste). (Either the balance is reserved for Brah- mans), or the balance may be administered to (members of) every caste.

7. The (ordeal by) sacred libation may be admin- istered in every case. The (ordeal by) balance is admissible in every season.

8. Eunuchs, distressed or feeble persons, the severely afflicted, infants, old men, women, and the blind should be tested by the balance always.

9. (The ordeal by) poison is not destined for

correct reading of the text translated above, Narada I, 19, 257 (pp. loi, 102).

5. M. Macn. X, i, 7. In actions for debt and the Hke, though witnesses possessing the required quaUfications (such as veracity, &c.) should have been adduced by the plaintiff, an ordeal may be administered, if the defendant proposes an ordeal and promises to give the fine or other penalty to be inflicted in case of his being defeated, because witnesses are subject to the fault of partiality, whereas an ordeal shows the true state of the case, as no fault can be found with it, and is an emblem of justice. M.

6. Viram. p. 235. This text comes after Narada I, 24, 335 (above, p. 117).

8. 9. Viram. p. 235. In the third Pada of 8, I read balavn'd- dhastriyoxndha/?2j^a with Smmi^. for balavr/ddhaturan stns ka.

women, nor is (the ordeal by) water fit to be admin- istered to them; it is through (the ordeals by) balance, sacred libation, and others that (the judge) must explore the true state of their minds.

10. Let (the judge) test strong men by fire, water, or poison, and let him test infants, old or distressed men by the balance.

11. Let (the judge) avoid (the ordeal by) fire in the case of lepers, (the ordeal by) water in the case of the asthmatic, and (the ordeal by) poison in the case of bilious or phlegmatic persons.

12. In the season of the rains, let the (ordeal by) fire be administered; also in the cold and chilly seasons. In the summer season, the (ordeal by) water is the proper (kind of ordeal). Poison (is destined) for the cold weather.

1 3. The chilly, cold, and rainy seasons are declared to be (the proper seasons) for the (ordeal by) fire; the autumn and summer seasons, for the (ordeal by) water; the (ordeal by) poison, (is fit) for the cold and chilly seasons.

14. The months of TTaitra (March-April), Mirga- ^irsha (November-December), and Vaii"akha (April-

(Vtram., Tod.), as the term atura occurs twice under the latter reading.

9. M. Macn. X, i, 12 (uncertain); Nepalese Narada.

10, II. Minor Narada I, 5, 116, 118 (p. 46). For the Sanskrit, see Narada-smrz'ti, p. 1 12, note. Nearly identical with a text usually attributed to Pitamaha, Viram. p. 237.

12. Viram. pp. 239, 240. Nearly identical with Narada I, 19, 254 (p. loi) and Minor Narada I, 5, 113, 114 (p. 46).

13, 14 a. V. T.; M. Macn. X, i, 10 (uncertain). These two texts are elsewhere attributed to Pitamaha, and it is certainly difficult to reconcile them with 12.

14 b. Vtram. p. 240. In the quotations, this text comes after

May) are proper months for all (ordeals), and not adverse to any kind of ordeal. (Ordeals must) never (be administered) in the afternoon, nor in the twi- light, nor at noon.

15. Ordeals administered at an improper place, or at an unsuitable time, or performed at a distance from humail habitations, constitute a deviation from the proper course of a lawsuit, this is certain.

16. The chief judge must superintend the whole of the proceedings at an ordeal, fasting and obeying the king's instructions in the same way as an Adhvaryu (priest officiates) at a sacrifice.

17. The chief judge, who must be a Brahman, thoroughly versed in the Vedas and Vedangas, instructed in sacred learning and of religious con- duct, tranquil-minded, unambitious,

18. Fond of veracity, pure, able, delighting in the welfare of all sentient beings, having kept a fast, clad in his moist garments (after a bath), having cleansed his teeth, should worship all deities accord- ing to rule.

19. With red perfumes and garlands, as well as

Narada I, 19, 259 (above, p. 102). * The prohibition to administer an ordeal at noon has reference to ordeals other than the ordeal by water.' Viram.

15. Viram. p. 241; May. p. 18 (text). I read bahirvasakn'tani in the second Pada (bahirvadikr/tani, May.), and vyabhiiaraw sadar- theshu in the third Pada (vyabhiHre sadartheshu, Vtram.). 'At a distance from human habitations,' in solitude. Viram.

16. M. Macn. X, i, 8 a; ' Pitamaha,' elsewhere.

17. 18. Viram. p. 245; M. Macn. X, 2, t8 (' Pitamaha'). I read kuryad in 18, as in Mitakshara, Vivadataw^ava^ &c. (kmva, Viram.). These texts, although generally quoted in the section on the ordeal by balance, seem to contain a rule applicable to every ordeal.

19. M. Macn. X, 2, 17, &c. This text is supposed to apply to

with curds, cakes of flour, fried grain and other (offerings), he should first worship the balance, and then show honour to the others.

20. The balance and the other ordeals ordained by the sages should be administered by the king by consent of the claimant, but not otherwise.

21. When they are performed otherwise (the claimant not giving his consent), he incurs the same guilt as a thief.

22. I will state next the excellent rule regarding the (ordeal by) balance, as the king and the chief judge should administer that ordeal to a man (arraigned in a cause).