Professional Documents
Culture Documents
HINDU
JUDICATURE
BY
FOREWORD BY
SIR JOHN WOODROFFE.
S.Q,
MADRAS :
CHAPTER PAGE
I. Law Courts and their constitution. 1
CALCUTTA,
^
t*ust 26, 1920.
JOHN
j
ANCIENT HINDU JUDICATURE
CHAPTER I
LAW COURTS AND THEIR CONSTITUTION.
THE paramount duty of the king is the pro-
tection of his subjects, which involves the
punishment of wrong-doer. The wrong-
the
doer cannot be found out unless the wrong com-
plained of is ascertained. The Smritis there-
fore enjoin on the king the duty of enquiring
into such (Vyavaharas) iM^K/ wrongs himself
with the assistance of his councillors.
1
:
H
3
Brihaepathi.
*
Kathyayana and Narada.
*
Kathyayana.
CHAP. I.] LAW COURTS AND TffEIR CONSTITUTION. 5
1
Mit. page 132. Sm. Cb, paee 38.
8
Brihaspathi
CHAP. I,]
LAW COURTS AND THBIE CONSTITUTION. 7
APPEAL.
In other cases, a party dissatisfied with a
decision may appeal against it to the next
higher tribunal. 1
In case of success of the
appeal the members of the judicial assembly
whose decision was upset in appeal were liable to
a punishment of fine for their error along with
the party who secured from them a wrong
verdict in his own favour. 2 The fine was
;
criminal trials.
(ACTIONS).
A sq^fR (Vyavahara) or a dispute is defined
by Kathyayana as the clearing up of the
doubt amidst conflicting statements. He gives
the derivative meaning of it as follows :
1
Mita., page 107.
>
Tag., Part II, Oh. I, v. 5.
CHAP. II.]
ACTIONS. 21
Chapter 1, v. 10.
ii
The direction of the king is to be sought not
only in the absence of any recognized proof but
also in other cases of disputes.
1
Mitakh. page 110.
30 ANCIENT HINDU JUDICATURE. [CHAP. 111.
An
infirm person, a child, an old man, one who
is an inaccessible place, one who is in mis-
in
fortune, one who is engaged in study, one who is
in a hurry to do any business, one who is
distressed in mind, those who are eager to do any
business for the king or to celebrate any festival,
mad men, drunken men, careless men, men
by misfortune, servants, a young woman
afflicted
who has been newly shorn of her hair, a woman
born in a respectable family, a woman who is
in confinement, a girl of the highest caste, and
noble men of high caste. The dependents of
these noble men, women of dissolute character,
prostitutes, persons of low families, and outcasts
could be summoned to appear 2 Under excep- .
1
Yag. Part II. Oh. I. v. 6 ;
Sm, Oh. page 72,
2 Mita. page 110.
CHAP. III.]
INSTITUTION OF ACTIONS. 31
*
Narada, Oh. I.v. 48.
Vyasa.
Narada, Ch I. v. 51.
* 52 to 54.
Narada, Ch. 1. ?.
32 ANCIENT HINDU JUDICATURE. [CHAP III.
1
Sukra Nithi, Ch, 4 Sub. Sec. 5, v. 119 & 120; also
Sm. Ob. page 75.
Narada Ch. II v. 23.
CHAP. Ill ] INSTITUTION OF ACTIONS. 33
*
Mita, page 111.
*
Yag. Part II. Oh. I. v. 6.
Mita. p. 111.
* Sm. Ch, p. 84.
CHAP. III.]
INSTITUTION OP ACTIONS. 35
*
Mita. page 112.
3 Sm.Ch. page, 91.
38 ANCIENT HINDU JUDICATURE. [CHAP. III.
INSTITUTION OP ACTIONS.
Mita. p. 132.
Mita. p. 132.
Sn. Ch. page 93.
Mita. p. 112.
40 ANCIENT HINDU JUDICATURE. [CHAP. HI.
Brihaspathi ;
8m. Ch.
p. 92 Narada, Ch, I. v. 44.
;
MISJOINDER OF PLEAS.
The combination of these different kinds
of 3rR Uthara in one and the same action is
prohibited.
2
The prohibition is based on the
ground that it might otherwise lead to con-
fusion as to the (i%qr) Kriya or burden of proof.
In a single action the burden of proof j%*rr
cannot be on both the parties. As there
is only one object sp-ffijf^ to be gained by
either, therecannot therefore be %qr burden of
proof on both. For instance when the Uthara
combines pr^r and 3TRT (denial and confession
and avoidance) the burden of proof would
necessarily fall upon both parties, for it is laid
down that in cases of fr^T, denial, the ft>qr,
burden of proof on the
3T*ff plaintiff, while in
is
1
MUa. page 1)4.
*
Kathyayana.
CHAP. III.] INSTITUTION OF ACTIONS. 45
gold and Rs. 100, the plea that gold was never
given and that Rs. 100 had been repaid is not
tenable. Similarly the pleas of 3>IW and ^jfcw
(Karana and Poorva Nyaya) cannot be joined
together as each of them throws the fo^r
burden of proof on the defendant. As in a
single claim either plea is sufficient to non-
suit the plaintiff, the other becomes superfluous.
The same considerations prevail when 3 or 4
pleas are combined. The objection as to such
misjoinder applies however only when all these
pleas are to be heard together but there can be
no objection to their being heard one after
another, as the 3?qf (Plaintiff) can succeed only
if all these are negatived one by one. The
order in which they can be heard may depend
upon the will of either party or of the
members of the assembly subject to the follow-
ing exception, viz., that the greater of the two
pleas spjcfpjf^nr (Prabhoothartha Vishaya)
or lone which leads to the performance of some
action in the shape of positive proof or
(Kriya Vishaya) must first be heard.
i
2
When
^KT Karanai
(
combined
is with another,
inasmuch as there is no action to be performed
in it, the other pleas must first be heard. 3
1
Sm. Ch. page 102.
Hareetha Mita. pages 113, 114.
'
Sm. Cb, page 104,
46 ANCIENT HINDU JUDICATURE. III.
[CHAP.
cloths, when
the plea is admission about gold,
denial about rupees and return of the cloths, the
plea of denial must first be investigated as it has
SPOT'S (Prabhoothartha). Then the plea about
cloths can come in for adjudication. Similarly,
the samerule must be applied when the other
pleas are combined with each other.
1
Kathyayana and Mita. p. 123.
*
Katbyayana and Mita. p. 123,
60 ANCfENT HINDU JUDICATURE. [CHAP.
1
Mita. page 124.
*
Narada, Cb. IV. T. 77.
*r>rrfFrr
Pitamaha says :
: ;Tr*rar
1
Mita. page 129.
CHAP. V V PRINCIPLES OF PfiOOF (PRAMANA.)
2
? II
>
Mita., page 125.
Narada, Oh. IV. v. 76.
CHAP. V.] PBINC1PLE3 OP PROOF (PRAMANA.) 69
1
Manu, Ch. VIII. v. 143.
70 ANCIENT HINDU J'JDICATUBE. [CHAP. V.
i
Manu, Cb. VIII. v. 146.
1
Manu, Cb. VIII. v. 149. Tag. Part II. Cb. II. v. 25,
*
8m. Ob. p. 58.
72 ANCIENT HINDU JUDICATURE. [CHAP. V
The objection
:
ORAL EVIDENCE.
The second method of human proof is by the
testimony of witnesses.
Witnesses and their characteristics : A
witness is a person other than the party who
has some knowledge of the transaction in dis-
pute.
1
A person becomes a witness according
to Manu either because he has seen something
or heard something. 2 Witnesses are of two
kinds: (1) f*r Krita (chosen) (2) 3Tf*T Akrita
;
1
Bcihaspithi and Sen., Oa. page 184.
Narada, Oh. IV. v. 150 to 152.
CHAP. VI.] ORAL EVIDENCE. 79
length of time
1
.
Number and
quality of witnesses : the
Ordinarily there must be at least 3 witnesses
1 Sm. Ch. page 185.
*
Sm. Ob. page 175.
*
Hareetha and Sm, Ch. p. 186.
80 ANCIENT HINDU JDD1CATUBB. [CHA?. VI.
Sm.Ch. p.174.
*
Nara^a, Ob. IV. v. 154.
* Q
Manu, Ch. VIII. v. P: .
1
Mita. page 152 and Sm. Oh. page 158.
1
Mita. p. 156 and 157.
92 ANCIENT HINDU JUDICATURE. [CHAP. VI,
1
Manu Ch. VIII, v. 107, 8m. Ch. p. 212.
2
Tag. Part II. Ch. V. Y. 77.
*
Mauu, Ch. VHI, v. 117.
*
Yag. Part TI, Ch. V. v. 82.
94 AKC1KNT HINDU Jl'BJCATUKB. [CHAP. VI.
(Madhyamasahasa) if on account of ;
1
Smrithi Ch. p. 126.
a
Vyasa ; Smrithi Oh. p. 127.
* Smrithi Ch. p. 128.
106 ANCIENT HINDU JUDICATURE. [CHAP. VIL
Mitaksbar?, p. 162.
VaBishta in Smritbi Cb. p. 131.
CHAP. VII.JLEKHYA PKAMANA(DOCUMENTABY EVIDENCE )
107
1
Narada, Ch. III. v. 135.
Smrithi Ch. p. 140.
8
tfarada, Ch. TIL v. 136.
Prajapati, viz. :
1
Mitakshara p. 162.
*
Narada Ch. III. ?. 142.
5
Katyana and Hareetha in Smrithi Oh. p. 141.
*
Brihaspati, Katyayana and Narada.
8
Katyayana, Smrithi Ch. p. 142.
112 ANCIENT HINDU JUDICATURE. [CHAP. VII.
1
Smritbi. Cb. p. 142,
*
Katyayana.
Tagna Pt. II. Cb. VII. v. 92.
4 Smritbi. &
pp. 144 145.
CHAP. vii. ]LEKHYA PRAMANA (DOCUMENTARY EVIDENCE).! 13
"
It is admitted that the idea of a will is wholly
unknown to Hindu Law, and that the native
languages do not even possess a word to express
the idea." The ancient Hindu Lawgivers seem
to have abhorred the idea of a man just before
his death disposing of his entire property in
favour of strangers or distributing it among his
1
Yagna Pt. II, Cb. VIII v. 95; Mitakshara, pp. 163 &
164.
8
Yagna Part II, Ch. VIII. v. 96.
* Mitakshara, p. 164.
CHAP. VIII.] DIVINJE PROOF (DIVYA PRAMANA). 119
windy season. 1
Rules as to forms applicable to certain
persons .-Women, children, old persons, blind
and lame men, Brahmanas, sick persons, may
take to the Thula form, Kshathriyas to the Agni
form, Vaisyas to the Jala form, and Sudns to the
Visha of seven grains. 2 The rule prohibiting
women al toother from resorting
to Oivya
Pramana applies where
to only one
cases
of the parties to the "V yavahara is a woman.
In such cases the adversary alone can -rt to
i TPTFR
*rff% II
TT
\\
fir^fft JTF^^F: n
qrpfc*fr
1
Tagna. Ft. II. Ch. VIII. v. 104.
a
Yagna. Pt. II. Ch. VIII v. 105.
1
Mitakshara, pp, 171 to 17.
CHAP. VIII,] DIVINE PROOF (DiVYA PRAMANA).
1
Yagna. Pt. II. Oh. VIII% v. 112 & 1 IS.
CHAP. VIII.] DIVINE PROOF (DIVYA PRAMANA). 13 1
sary
1
. If a man is able to prove his right only
tosome of the many things claimed, which have
been totally denied by the adversary he shall
be entitled to all the things, subject however to
the exception that his right in respect of any
2
thing not claimed before shall not be allowed .
i
Narada, Oh. 1. v. 10.
'
Tagna. Ft. II. Ch. II. v. 21.
3 Smrithi Cb. 54 122.
p. ; Milakshara, p.
4
Ka'.yayana.
CHAP. IX.] 8AMSAYA HETHU PARAMARASA. 141
2
party lay the burden of proof. Proof was to
be confined to the facts originally alleged.
Any attempt at proof of irrelevant facts led not
only to the loss of the original action but was also
visited with fine.
Similarly defajiltin appearance
of either party resulted in the rejection of his
case. 3 Any party who failed to examine his
witnesses even after taking time therefor was
non -suited. 4
Any party who fraudulently failed to prosecute
the case after the commencement of the trial was
punished with twice the fine inflicted on the
unsucessful party though in some cases compro-
mise with the permission of, the king was per-
Compromise was recommended in cases
mitted. 5
where the evidence was equally balanced or
where the law came in conflict with usage. 6
Pitamaha.
Brihaepati and Katyayana; Smriti Ob. p. 113.
Smriti Oh. p. 107.
1
Yagna. Pt. II. Ob. II. v.
J7 ; Narada Oh. IV. v. 163.
2
Tagna. Pt. II Oh. IL v. 23.
Mitakshara, p. 124.
CHAP. IX.] 8AM8AYA HETHU PARAMARASA. 143
1
Pifcamaha and Vyasa Smriti, Ch. p. 123.
144 ANCIENT HINDU JUDICATURE. [CHAP. IX,
i
Yag. Part II, Oh. II. v. 11.
UtiAP. X.] JUDGMENT AND DECREE (NIENAYA). 147
*
lag. Part II. Ch, II. v. 18,
148 AKC1BNT HINDU JUDICATUBB. [CHAP, X,
Courts :
P16B
Counter claims and counter actions, ... ... 53
Curator (sequestrator), .. ... ... 6
Shasana, grant
Jayapathra, Judgment or Decree
Agnapathra, order
Pragnapathra, request
(2) Private :
P1GB
Execution, ... ... ... ... 148
Handwriting, comparison of, ... ... 112
Immoveable property,
Particulars to be given in actions in respect of,... 35
Infirmities, of oral evidence, ... ... 82
Of documentary evidence, ... 111,112,123
*
Ration
Judgments :
PAGE
Ownership, modes of acquiring, ... ... 67
Plaint or Prathigna, Institution of actions ... 29
Particulars of, ... ... ...33,34
Plaintiff or Arthee, ... ... ... 34
Pleadings :
PAGE
Proxy, Aggrieved person may authorize, ... 29
Person not conversant with litigation might
depute ... ... ... 32
Review (Poonarnyaya) :
Summonses :
PAGE
Bad and defective, ... ... ...41, 42
Four classes of valid Utharas, ... ... 43
Witnesses :