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Mitakshara (Rijumitakshara) 2

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2.1.1

For a king endowed with the qualities such as consecration, the protection of the subjects is the supreme duty. And that is not possible without restraining the wicked. And the identification of the wicked is not possible without examining legal disputes. That this examination of legal disputes is to be performed every day has been stated:

2.1.2

"He should personally inspect legal disputes surrounded by court assessors day after day."

2.1.3

And of what nature is that legal dispute, how many kinds does it have, and what is its procedure? This whole body of procedure has not been stated. To state that, the second chapter begins with: 'Legal disputes...'

2.1.4

The king should inspect legal disputes together with learned Brahmins, / in accordance with the legal treatise, free from anger and greed.

2.1.5

A legal dispute is a claim asserting a connection to oneself in conflict with another. As when one says, 'This field, etc., is mine,' and another also says in opposition to that, 'It is mine.' He indicates its manifold nature by the plural number. By saying 'the king', he shows that this is not a duty belonging only to a Kshatriya, but rather to anyone else as well who is appointed to protect the subjects. 'Should inspect' is a restatement of what was said before, for the purpose of enjoining a specific rule of conduct. 'With learned': with those conversant with the legal treatises, the Vedas, grammar, and so on. 'With Brahmins': not with Kshatriyas and others. Because of the use of the instrumental case in 'together with Brahmins', these hold a subordinate role, in accordance with the rule 'accompanied by a subordinate'. And for this reason, if there is a failure to inspect or an erroneous inspection, the fault is the king's, not the Brahmins'. As Manu says:

2.1.6

A king who punishes those who should not be punished, and does not punish those who should be punished, / incurs great infamy and goes to hell.

2.1.7

How? In accordance with the legal treatise, not in accordance with treatises on polity. Even the customary law of a region and the like, since it is not contrary to the legal treatise, falls within the scope of the legal treatise, and so is not mentioned separately. And so he will state:

2.1.8

Whatever conventional law is not in conflict with one's own duty,

2.1.9

even that must be carefully preserved, as well as the duty established by the king.

2.1.10

[The phrase] "free from anger and greed" [is commented upon]. Even though [this is already] established by [the phrase] "in accordance with the legal treatise", the statement "free from anger and greed" is for the sake of emphasis. Anger is wrath; greed is excess of desire. || 2.1

2.1.11

And he describes the members of the court:

2.1.12

Endowed with sacred learning and study, knowers of the law, speakers of truth,
and who are impartial toward enemy and friend—such should the king appoint as members of the court.

2.1.13

Moreover: "Endowed with sacred learning and study" means endowed with sacred learning—namely, learning through oral instruction in Mīmāṃsā, grammar, and so forth—and with study—namely, study of the Veda. "Knowers of the law" means knowers of the legal treatises. "Speakers of truth" means those whose habit is to speak the truth. "Who are impartial toward enemy and friend" means free from passion, hatred, and the like. Men of such description are "members of the court" (sabhāsadaḥ): the king should ensure they are seated (sīdanti, upaviśanti) in the court (sabhāyāṃ, saṃsadi) by [honoring them with] gifts, respect, and hospitality. Although it is stated without specification that they are "endowed with sacred learning and study", they must nevertheless be Brahmins only. As Kātyāyana says:

2.1.14

"He, however, accompanied by court members who are steady, wise, of noble lineage, foremost among the twice-born,
skilled in the meaning of the legal treatises, and proficient in the science of polity..."
(KSm 57)

2.1.15

And three of them should be appointed, because the plural number is significant,

2.1.16

"In whatever place three Brahmins who know the Veda sit..."
(MDh 8.11)

2.1.17

and on account of this recollection of Manu. Bṛhaspati, however, says that there are seven, five, or three court members:

2.1.18

"Where seven, five, or even three Brahmins sit
who know the ways of the world, the Vedas, and the law, that court is equal to a sacrifice."
(BṛSm 1.59)

2.1.19

Nor should it be thought that the phrase "endowed with sacred learning and study" and so forth is an adjective qualifying the Brahmins mentioned in the preceding verse by the words "together with the Brahmins", because a relation of qualifier and qualified is impossible between words ending in the instrumental and nominative cases, and because it would entail redundancy with [the term] "learned men". And likewise Kātyāyana clearly shows a distinction between the Brahmins and the court members:

2.1.20

"Accompanied by the chief judge, accompanied by the minister, accompanied by the Brahmin and the domestic priest,
accompanied by the court members, the king, looking on, abides in heaven according to righteousness."
(KSm 56)

2.1.21

The distinction in this matter is that the Brahmins are unappointed, whereas the court members are appointed. For this very reason it is said:

2.1.22

"Whether appointed or unappointed, one who knows the law is entitled to speak."
Thus.

2.1.23

There, even when the appointed ones declare the matter as it stands, if the king acts otherwise, then he must be restrained; otherwise there is fault. And it has been said by Kātyāyana:

2.1.24

"Those court members who follow him even as he proceeds unjustly
they too share in that [sin]; therefore the king must be cautioned by them."
(KSm 75)

2.1.25

For the unappointed ones, on the other hand, there is fault only in stating otherwise or in not stating [the truth], but not in failing to restrain the king;

2.1.26

"Either the court must not be entered, or what is proper must be spoken;
by not speaking or by speaking falsely, a man becomes sinful."
(MDh 8.13)

2.1.27

because of this recollection of Manu. And by the word "and" (ca) in "toward enemy and friend", the assembly should also be attended by several merchants for the sake of conciliating the people. As Kātyāyana says:

2.1.28

"It should be attended by several merchants of noble birth,
who possess good lineage, character, age, conduct, and wealth, and are free from malice."
(KSm 58) || 2.2

2.1.29

It has been said that "the king shall examine the legal proceedings". With regard to that, he states a secondary alternative:

2.1.30

When, however, the king is unable to examine the legal proceedings due to the press of business,
a Brahmin who knows all laws must be appointed along with the court members.

2.1.31

When the king is unable to examine the legal proceedings due to preoccupation with other affairs, a Brahmin—not a Kshatriya or other [class]—who knows all laws, meaning one who knows and investigates all duties declared in the legal treatises and established by convention, must be appointed along with the previously mentioned court members to examine legal proceedings. And he should appoint one qualified by the attributes stated by Kātyāyana. As he says:

2.1.32

"Self-controlled, noble-born, impartial, causing no agitation, steady,
fearful of the next world, exceptionally righteous, diligent, and free from anger."
(KSm 64)

2.1.33

In the absence of such a Brahmin, he may appoint a Kshatriya or a Vaishya, but not a Shudra. As Kātyāyana says:

2.1.34

"Where there is no Brahmin, however, there he should employ a Kshatriya,
or a Vaishya who knows the legal treatises; he must diligently avoid a Shudra."
(KSm 67)

2.1.35

Nārada, however, shows that this one alone is primary:

2.1.36

"Having placed the legal treatise in front, abiding by the opinion of the chief judge..."
(NSm 1.29)

2.1.37

meaning not abiding by his own opinion, just as [it is said] "the king sees the enemy's army through the eyes of his spies". And his title is etymological: he asks (pṛcchati) the plaintiff and the defendant, thus he is prāṭ; he discriminates (vivinakti) or analyzes (vivecayati) their statements as contradictory or uncontradictory together with the court members, thus he is vivāka. He is both prāṭ and vivāka, hence prāḍvivāka (chief judge). And it has been said:

2.1.38

"Because, after asking about what relates to the dispute, he carefully investigates it
together with the court members, therefore he is remembered as the chief judge (prāḍvivāka)."
|| 2.3

2.1.39

If the court members, such as the chief judge, investigate a legal proceeding in violation of the legal codes due to passion and the like, then what should the king do? In response to this, he says:

2.1.40

Court members who act in violation of the legal codes out of passion, greed, or fear
are each to be punished with twice the fine of the dispute.

2.1.41

Moreover, the aforementioned members of the court, being unchecked through passion and overcome by it, acting contrary to the legal codes (that is, contrary to sacred tradition)—or, by the word 'and the like', contrary to customary usage—out of affection (that is, excessive fondness), greed (that is, excessive desire for gain), or fear (that is, dread), are to be fined individually, each one, double the fine due to loss of the lawsuit, but not [double] the property that is the object of the lawsuit. If it were so, it would entail the absence of a fine in cases such as adultery. The mention of affection, greed, and fear is for the purpose of restriction: double the fine applies only in cases of affection and so on, not in cases of ignorance, delusion, and the like. Nor should it be considered that Brahmins are not to be fined based on Gautama's statement, 'The king is master of everyone except Brahmins' (GDh 11.1), because that is for the purpose of praise. As for the statement: 'He is to be exempted by the king from six things: he is not to be killed, not to be bound, not to be fined, not to be banished, not to be reproached, and not to be abandoned'—that too pertains to a learned Brahmin as described in the text: 'He is one who is deeply learned, knowing the ways of the world, the Vedas, and the Vedāṅgas, skilled in dialectics, epics, and Purāṇas, reliant upon them and living by them, sanctified by the forty-eight sacraments, devoted to the three duties or the six, and well trained in customary law'; it does not pertain to any Brahmin merely by birth. || 2.4

2.1.42

He states the subject matter of legal proceedings:

2.1.43

When one who has been injured by others in a manner contrary to sacred tradition and customary conduct / submits it to the king, that indeed is a title of legal proceedings.

2.1.44

If (ced) a person, injured—that is, oppressed—by others in a manner contrary to the legal treatises and established customary conduct, submits—that is, reports—this to the king or to the chief justice, then that matter being reported is a 'title of legal proceedings' (vyavahārapada). Legal proceeding (vyavahāra) consists in the statement of claim, the answer, the consideration of doubt and evidence, the means of proof, the judgment, and the ultimate aim; its 'title' (pada) is its subject matter. And this is its general definition. That [legal accusation] is of two kinds: an accusation based on suspicion and an accusation based on fact. As Nārada says:

2.1.45

'Accusation is to be understood as twofold, arising from suspicion and from fact: / suspicion arises from association with the wicked, but fact from the discovery of stolen property.' / So it is stated. (NSm Mā 1.22)

2.1.46

'Hoḍhā' means stolen property; that is to say, a mark [of guilt]. 'Hoḍhābhidarśana' means sighting thereby or seeing directly; hence, 'from that'. Furthermore, an accusation based on fact is also of two kinds: prohibitive in nature and mandatory in nature. For instance: 'Having taken gold and other goods from me, he does not return them'; and: 'This man is seizing my field and other property.' And Kātyāyana has stated:

2.1.47

'He who is unwilling to do what is rightfully his duty, or who does what is unlawful.' / So it is stated. (KSm 139)

2.1.48

Moreover, it is divided into eighteen titles. As Manu says:

2.1.49

'The first among these is the non-payment of debts, deposit, sale without ownership, / partnership, and non-delivery of gifts, // non-payment of wages, breach of contract, / rescission of purchase and sale, disputes between master and herdsman, // the law on boundary disputes, physical and verbal assault, / theft, violence, and adultery, // the duties of husband and wife, partition of inheritance, gambling, and prize-fighting— / these are the eighteen titles in the established practice of legal proceedings in this world.' / So it is stated. (MDh 8.4–7)

2.1.50

These also have reached a great number on account of distinctions among matters to be established. As Nārada says:

2.1.51

'Of these very ones, further subdivisions amount to one hundred and eight; / because of the diversity of human actions, it is said to have a hundred branches.' / So it is stated. (NSm Mā 1.20)

2.1.52

By the words 'if he submits it to the king', it is shown that he comes and reports on his own initiative, not prompted by the king or prompted by an officer of the king. As Manu says:

2.1.53

'Neither the king nor his servant should initiate a legal suit on his own; / nor should he ever suppress a matter brought forward by another.' / So it is stated. (MDh 8.43)

2.1.54

By the word 'by others' (paraiḥ)—meaning by one other person, by two others, or by multiple others—it is shown that a lawsuit may involve one against one, against two, or against many. As for the statement,

2.1.55

'A lawsuit brought by one against many, or by women, or by servant-folk, / should not be entertained; so it is declared by those who know the law.' (DhKo 114)

2.1.56

this statement of Nārada refers to a case involving two distinct matters to be established. By the words 'if he submits it to the king' alone, it is established by implication that, being questioned by the king, he should submit his complaint in modest attire; and if the complaint is reasonable, summoning the defendant by means of a seal or the like, and not summoning those who are incapacitated and so forth, are naturally implied, and therefore are not explicitly mentioned. In another legal text, however, it is stated for clarity, as follows:

2.1.57

'At the proper time, he should question the petitioner who stands before him making his plea: / "What is your business? What is your grievance? Do not fear, speak, O man! // By whom, in what matter, when, and why?" Thus he should question one who has arrived in the assembly. / When questioned thus, whatever he says, the king, together with the court members and Brahmins, // having deliberated upon the matter, if it is just, from that point on, in order to summon [the other party], / should either send his seal to him or dispatch an officer. // The king should not summon the incapacitated, children, the aged, those situated in calamity, those engaged in religious rites, / those whose urgent affairs would be ruined, the distressed, those occupied with royal business or festivals, / the intoxicated, the insane, the negligent, the afflicted, or servants; // nor a young woman without male kin, or one born of noble family, or a woman newly delivered of a child, / nor a maiden of the highest of all classes—these are declared to have kinsmen as their guardians. // But for women whose families depend upon them, unchaste women, courtesans, / women without kin, and outcaste women, the summoning is approved. // Having ascertained the time, the place, and the gravity or lightness of the cases, / the king may summon even the incapacitated and others by means of slow conveyances. // Having examined the accusation, even those who have renounced the world to live in the forest and the like, / the king should also summon, without angering them in their venerated state.' / So it is stated.

2.1.58

The regulation concerning legal restraint, too, which is naturally established by implication, has been stated by Nārada:

2.1.59

If a person does not stand by the matter to be spoken of, or transgresses his statement, / the claimant may detain him until the summons is seen.
Detention is of four kinds: detention to a place, detention by time, / detention from travel, and detention from work; he who is detained must not violate it.
One who, having been detained at the time of detention, violates that detention, / must be punished; but one who acts unlawfully [in detaining], that detainer incurs a penalty.
In crossing a river, in a forest, in dangerous lands, during riots, and the like, / a detained person who transgresses that detention by another commits no wrong.
One wishing to marry, one afflicted with illness, one intending to perform a sacrifice, one in distress, / one already prosecuted by another, and likewise one occupied with the king's business;
herdsmen while their cattle are grazing, farmers at the sowing of grain, / artisans during the time of their work, and soldiers in battle—[these must not be detained].

2.1.60

'Detention' is restraint by the king's command. Those who are disabled and the like may send a son or someone else, or a friend; and they are not considered persons pleading for another:

2.1.61

'He who is not a brother, nor a father, nor a son, nor an appointed agent, / but pleads for another, speaking falsely in legal proceedings, should be punished.'

2.1.62

—according to the statement of Nārada. (2.5)

2.1.63

He states what should be done when the respondent has been brought by any one of the sealed token, the writ, or a messenger:

2.1.64

In front of the respondent, what was stated by the claimant should be written down, / marked with the year, month, fortnight, day, name, caste, and the like. (2.6)

2.1.65

What is sought (arthyate) is the object of the claim (arthaḥ), that which is to be established; he who has this is the claimant (arthī). His adversary is the respondent (pratyarthī). In front of him, that is, before him, it must be written down (lekhyam). Just as, in the manner that, it was previously declared at the time of the initial complaint, so it must be; but not otherwise, because of the contingency that the proceeding would fail through inconsistency of statement.

2.1.66

'He who states otherwise, he who resists the evidence, he who fails to appear, he who remains speechless, / and he who flees when summoned—the defeated party is declared to be of five kinds.'

2.1.67

Lest it be objected that writing it down again is useless because the statement of the claimant was already written down at the time of the initial complaint, he says: 'marked with the year, month', and so forth. It is marked with the year, month, fortnight, lunar day, weekday, and the like, as well as the names, Brahmin caste, and the like of the claimant and the respondent. By the word 'and the like' are included the property, its quantity, the place, time, signs of loss, and so forth. As has been stated:

2.1.68

'Meaningful, consistent with law, complete, unconfused, / containing what is to be proved, having expressive words, coherent with the matter at hand,
well-known, uncontradicted, definite, capable of proof, / concise, comprehensive of the matter, and not conflicting with place and time;
having the year, season, month, fortnight, day, time of day, country, and locality, / accompanied by the place, dwelling, designation of the subject matter, caste, appearance, and age;
having the measure and number of what is to be proved, having the names of oneself and the respondent, / marked with the names of the ancestors of the other and oneself, and of various kings;
having the signs of loss and one's own injury, and specifying the reporter, bringer, and giver— / that which is submitted to the king is termed the plaint (bhāṣā).'

2.1.69

'Plaint' (bhāṣā), 'claim' (pratijñā), and 'plea' (pakṣa) are not different in meaning. The difference is that at the time of the initial complaint only the bare grievance is written down, whereas in front of the respondent it is written down as qualified by the year, month, and so forth. Although the specification of the year is not useful in all legal proceedings, it is nevertheless useful for reaching a decision in matters of pledge, acceptance of a gift, and sale:

2.1.70

'In the case of a pledge, an acceptance of a gift, and a purchase, the earlier transaction is stronger,'

2.1.71

—according to this text. Even in monetary disputes, if someone, when asked, should say: 'True, it was taken and returned,' in a case where a certain quantity of property was taken by someone from a person in one year and returned, and again in another year that same property of that quantity was taken by him from that person—then [the specification of the year] is useful to show: 'It was taken and returned in another year, not in this year.' In the same way, the month and so on are also to be applied. Country, place, and the like, however, are useful only in disputes concerning immovable property:

2.1.72

'The country, the place, the exact situation, / the caste, the designation, the neighboring inhabitants, the measurement, and the name of the field;

2.1.73

and the mention of the father and grandfather, and the succession of previous kings— / these ten one should enter in disputes concerning immovables,'

2.1.74

—according to the traditional rule. 'Country' is the Middle Country (Madhyadeśa) and the like. 'Place' is Vārāṇasī and the like. 'Exact situation' is a house, field, or the like, properly situated right there and defined by the division of eastern and western directions. 'Caste' is Brahminhood and the like of the claimant and the respondent. 'Designation' is Devadatta and the like. 'Neighboring inhabitants' means the people residing in the adjacent area. 'Measurement' is the extent of the land, such as a nivartana. 'Name of the field' is 'the rice-field', 'the betel-nut field', 'the black-soil field', 'the pale-soil field'. The mention of the name of the father and grandfather of the claimant and the respondent, and the mention of the names of the three preceding kings. The purport is that as much of the year, month, and so forth as is useful in a given lawsuit, so much should be written down there. Since the definition of a claim (pakṣa) is thus established, the fact that those which lack the characteristics of a claim while appearing to be claims are pseudo-claims (pakṣābhāsa) is already self-evident; hence pseudo-claims were not stated separately by the lord of yogins [Yājñavalkya]. Others, however, have stated them for the sake of clarity:

2.1.75

'One should reject a pseudo-claim that is unknown, uninjured, meaningless, purposeless, / incapable of proof, or contradictory.'

2.1.76

'Unknown' is such as: 'Having taken my hare's horn, he does not return it.' 'Uninjured' is such as: 'By the light of the lamp in our house, this man carries on transactions in his own house.' 'Meaningless' is devoid of intelligible meaning, such as: 'kacaṭatapagajaḍadaba'. 'Purposeless' is such as: 'This Devadatta studies in a sweet voice near our house.' 'Incapable of proof' is such as: 'I was mocked by Devadatta with a knitting of the brows.' This is incapable of proof because means of proof are impossible: on account of the brief duration there is no possibility of witnesses; a document is out of the question; and because of the triviality an ordeal is not allowed. 'Contradictory' is such as: 'I was cursed by a mute,' or what is contrary to the city, the kingdom, and the like:

2.1.77

'And that which is banned by the king, and that which causes hostility to the citizens, / or to the entire realm, or likewise to its ministers,
or any other claims that cause hostility to a city, village, or community— / all those legal proceedings are declared inadmissible.'

2.1.78

As for the statement:

2.1.79

'A plaint that is confused with multiple subject matters does not succeed,'

2.1.80

In that regard, if it is said to be 'complicated by multiple objects', then there is no defect, because an accusation of the form 'My gold, garment, coins, and the like have been stolen by this man' is not invalid. If it is objected that there is a semblance of a claim when titles of legal proceedings such as non-payment of debts are confounded, that too is not so. A statement of claim of the form 'My coins were taken by him at interest, gold was deposited in his hands, and this man is seizing my field' is indeed accepted as a valid claim. However, because of the diversity of causes of action, the proceedings are conducted in succession and not simultaneously; that is all. As Kātyāyana says:

2.1.81

Even a legal proceeding that has multiple claims, once it is clearly ascertained, / the king may willingly take up out of a desire to know the truth.
(KSm 137)

2.1.82

Therefore, the meaning of that [rule] is that a plaint combined with multiple titles of law cannot succeed simultaneously. From the mention of the claimant, sons, fathers, and so on are included, because their interest is identical. Even in the case of an appointed representative, an identity of interest is implied by the very appointment,

2.1.83

Whether appointed by the claimant or dispatched by the respondent, / whoever litigates for the sake of another, victory and defeat belong to those two.
(NSm Mā 2.22)

2.1.84

—owing to this legal precept, the victory and defeat of the representative belong only to the original principals. And having written this on the ground or on a wooden board in chalk, and corrected it by addition and deletion, he should subsequently enter it onto the document,

2.1.85

The chief judge should have the plaint, as naturally spoken, written down / in chalk on a board, and thereafter, corrected, onto the document.
(KSm 131)

2.1.86

—owing to this legal precept of Kātyāyana. And the correction must be made until the answer is seen, not beyond this, because it would lead to an infinite regress. For this very reason, Nārada stated:

2.1.87

One may correct the plaint, however, only until the answer is seen. / Once it is countered by the answer, the correction must cease.
When the assessors have the defendant deliver an answer without having corrected the plaint at all, then having punished the assessors with the punishment stated in "out of partiality, greed..." (YDh 2.4), the king must restart the legal proceeding preceded anew by the formal claim. || 2.6

2.1.88

Now, he states what must be done when the plaint has thus been corrected and recorded on the document:

2.1.89

The answer of one who has heard the claim should be written down in the presence of the claimant. [2.7a]

2.1.90

"One who has heard the claim" is the respondent by whom the subject matter of the plaint has been heard; "his answer"—it is called an "answer" (uttara) because it comes subsequent (uttaratra) to the plaint—must be written down. It is to be written "in the presence", in the proximity, of the claimant, the original complainant. And that which is a refutation of what was previously stated is called an answer. As is stated:

2.1.91

Covering the claim, substantial, unambiguous, consistent, / and intelligible without commentary: this, those who know it recognize as an answer.

2.1.92

"Covering the claim" means capable of refuting it. "Substantial" means legitimate, not departing from reason. "Unambiguous" means free from doubt. "Consistent" means not self-contradictory between former and latter parts. "Intelligible without commentary" means that which does not require its meaning to be explained through the use of obscure words, through improper case-endings, compounds, and supplied ellipses, or through the speech of another country—that is a sound answer. And that is of four kinds: admission, denial, special plea, and former judgment. Thus says Kātyāyana:

2.1.93

Admission of truth, denial, and likewise special plea, / and so the rule of former judgment: the answer is of four kinds.
(KSm 165)

2.1.94

Among these, an answer of truth is, for example: when it is said, "He owes me a hundred silver coins," [and he replies,] "Truly, I owe it." As is stated:

2.1.95

Speaking the truth regarding what is to be proved is declared to be an admission.
(KSm 168)

2.1.96

A denial, however, is: "I do not owe it." And likewise Kātyāyana says:

2.1.97

If the accused makes a denial of the accusation, / one should know that in legal procedure to be an answer of denial.
(KSm 167)

2.1.98

And that answer of denial is of four kinds:

2.1.99

"This is false," "I do not know of it," "I was not present there at that time," / and "I was not born at that time": thus denial is of four kinds.
(NSm Mā 2.5; KSm 169)

2.1.100

A special plea, indeed, is: "True, it was received, but it was repaid," or "it was acquired as a gift." As Nārada states:

2.1.101

If the respondent concedes in such a manner the matter recorded by the claimant, / but states a reason [justifying his position], it is considered a special plea.

2.1.102

An answer of former judgment, however, is where the accused speaks thus: "I was accused in this matter by him, and there he was defeated in the course of legal procedure." And it is stated by Kātyāyana:

2.1.103

Even if defeated through established procedure, if he should have a claim recorded again, / he must be addressed with, "You were defeated previously." That is called a former judgment.
(KSm 171)

2.1.104

The definition of an answer being thus established, it is established by implication that statements devoid of the characteristics of an answer yet having the appearance of an answer are pseudo-answers. And it has been clarified in another legal text:

2.1.105

Ambiguous, departing from the subject matter, too brief, too verbose, / or covering only a part of the claim, or entirely irrelevant: such can never be an answer. / That which has incoherent words, is non-comprehensive, of concealed meaning, inconsistent, / intelligible only with commentary, and insubstantial, is not an answer for the establishment of one's purpose.
(cf. KSm 175)

2.1.106

Among these: Doubtful: as when, upon the claim 'A hundred suvarṇas were taken by him,' [the answer is,] 'True, a hundred suvarṇas or a hundred māṣas were taken.' Extraneous to the subject: as when, in a claim for a hundred suvarṇas, [the answer is,] 'I owe a hundred panas.' Too little: in a claim for a hundred suvarṇas, 'I owe five hundred [māṣas, or fifty].' Too much: in a claim for a hundred suvarṇas, 'I owe two hundred.' Covering only a part of the claim: in a claim for gold, clothes, and the like, 'The gold was taken, nothing else.' Incomplete or misplaced: when in a claim of non-payment of debt, the reply is made on an entirely different head of dispute, as when, in a claim for a hundred suvarṇas, [the reply is,] 'I was beaten by him.' Inadequate: lacking specifications of place, location, and so forth, as when, the plaint having been recorded that 'A field in the Madhyadeśa, in Vārāṇasī, in the eastern quarter, was wrongfully seized by him,' [the reply is simply,] 'A field was seized.' Hidden meaning: as when, in a claim for a hundred suvarṇas, [the reply is,] 'Is it only to him that I owe?'—where by innuendo he indicates that the chief judge, an assessor, or the plaintiff owes someone else; this is 'hidden meaning.' Confused, that is, self-contradictory: as when, a claim for a hundred suvarṇas having been made, [the answer is,] 'True, it was received; I do not owe it.' Understandable only through interpretation: understandable through an explanation of clumsy case-endings, compounds, and ellipses to be supplied, or through an expression in an uncultivated local dialect; as when, regarding a father's debt in a claim for a hundred suvarṇas, [the answer is,] 'From the statement of a hundred received, of suvarṇas, of the father, I do not know'—meaning here, 'From the statement of my father who received a hundred, I do not know that a hundred suvarṇas were received.' Devoid of substance: contrary to reason, as when, to the accusation, 'A hundred suvarṇas were taken by him at interest, and only interest was paid, not the principal,' [the reply is,] 'True, interest was paid, but the principal was not received.' Because of the use of the singular number in 'an answer' (uttaram), a mixture of answers is excluded. As Kātyāyana says:

2.1.107

"That which is an admission in one part of the plaint, a special plea in another, / and a denial in yet another, is not a valid answer because of mixture."

2.1.108

And the reason for its not being a valid answer is stated by the same author:

2.1.109

"In a single dispute, the burden of proof cannot fall on both litigants; / nor can both achieve proof of the subject, nor can there be two burdens of proof in a single case."

2.1.110

When there is a mixture of a denial and a special plea, the burden of proof would fall on both the plaintiff and the defendant:

2.1.111

"In a denial, the burden of proof is on the original claimant; in a special plea, on the respondent,"

2.1.112

—as laid down in the traditional texts. Both together in a single lawsuit are contradictory. For example, in the accusation 'A suvarṇa and a hundred rūpakas were taken by him,' [the answer is,] 'The suvarṇa was not taken; the hundred rūpakas were taken and repaid.' When, however, there is a mixture of a special plea and a previous judgment, both burdens of proof fall on the defendant alone:

2.1.113

"When previous judgment and a special plea are declared, the defendant must specify the proof."

2.1.114

For instance: 'The suvarṇa was taken and repaid; as for the rūpakas, he was defeated in legal process.' Here, in the case of a previous judgment, it must be proved by a decree of victory or by witnesses to the previous judgment; but in the case of a special plea, it must be proved by witnesses, documents, and the like: thus there is conflict. The same should be observed also in a mixture of three kinds of answers. For example, in the claim 'A suvarṇa, a hundred rūpakas, and clothes were taken by him,' [the answer is,] 'True, the suvarṇa was taken and repaid; the hundred rūpakas were not taken; and in the matter of the clothes, he was defeated by a prior judgment.' So also in a fourfold mixture. And their status as non-answers is when they are taken simultaneously, because that part cannot be established without the others; taken successively, however, they are indeed valid answers. And the sequence depends on the wish of the plaintiff, the defendant, and the assessors. Where, moreover, there is a mixture of the two [denial and special plea], there the lawsuit should first proceed by taking up the proof of that which concerns the greater value, and afterwards the lawsuit should be considered by taking up the answer concerning the lesser value. And where there is a mixture of an admission and another answer, there the lawsuit should be considered by taking up the other answer, because in an admission there is no burden of proof. As stated by Hārīta:

2.1.115

"If an answer of denial and a special plea should both occur in one case, / or an admission along with another, which answer is to be accepted there?"

2.1.116

Having so asked, he answered:

2.1.117

'That which concerns the greater subject-matter, or wherein lies the efficacy of the proof— / that is to be known as the answer there; otherwise it is unmixed.'

2.1.118

‘It is mixed’ is the completion of the sentence. The meaning is that in view of the remaining part, the order is optional. Among them, [an answer] concerning the greater subject-matter is: as when, upon the claim, ‘He took gold, a hundred coins, and clothes,’ [the defendant answers,] ‘The gold and the hundred coins were not taken, but the clothes were taken and returned.’ Here, since the denial plea covers the greater subject-matter, the legal proceeding should first be conducted by taking the proof of the claimant, and afterwards the legal proceeding regarding the clothes. In this manner it should be applied to a combination of denial and previous judgment, and to a combination of special plea and previous judgment. Likewise, in that very claim, if the answer is: ‘True, the gold and the hundred coins were taken, I will return them; but the clothes were not taken,’ or ‘were taken and returned,’ or ‘he was previously defeated regarding the clothes,’—even though the admission covers the greater subject-matter, since there is no proof required in that regard, the legal proceeding should be conducted by taking the proof of the denial or other plea. But where a denial and a special plea pervade the entire claim, as when someone says by pointing out specifically: ‘This cow is mine, was lost at such-and-such a time, and today was seen in his house’; but the other says: ‘This is false; she stayed in our house even before the indicated time, and was born in my house.’ This [plea], first of all, is not a non-reply, because it is capable of rebutting the claim; nor is it a mere denial, because a reason has been presented; nor is it a [pure] special plea, because not even a part is admitted. Therefore, this is a denial accompanied by a reason. And here, the burden of proof belongs to the defendant, according to the statement: ‘In a special plea, [the proof is] on the defendant.’ If it is objected: ‘Why does the proof not belong to the claimant, according to the rule: ‘In a denial, the proof is on the prior claimant’?’—[the reply is:] because that applies to a pure denial. [If it is asked:] ‘Why does this statement, ‘In a special plea, on the defendant,’ not also apply only to a pure special plea?’—this is not so. Because every special plea by its nature is accompanied by a denial, and there is no pure special plea. In an established special plea, there is a denial of one part by way of admitting another part of the subject-matter claimed, as in: ‘True, a hundred coins were taken; I do not owe them, because they were returned.’ But in the present example, there is no admission even of a part of the subject-matter claimed—this is the distinction. And this has been clearly stated by Hārīta:

2.1.119

‘Between a denial and a special plea, / the special plea is to be accepted.’ / Thus.

2.1.120

Where denial and previous judgment pervade the claim, as when, upon the accusation, ‘He owes a hundred coins,’ [the defendant answers,] ‘This is false; regarding this matter he was previously defeated’; here too, the proof belongs only to the defendant,

2.1.121

according to the statement: ‘When previous judgment or a special plea is stated, the defendant should specify the proof.’

2.1.122

Because a pure [plea of] previous judgment does not exist, as it would result in being a non-reply; even an admission is an answer only because it removes the status of being to-be-proved by stating that the claim set forth as to-be-proved is already established. But when there is a combination of a special plea and a previous judgment, as when one accused that ‘a hundred was taken by him’ answers: ‘True, it was taken and returned, and in this very matter he was defeated by a previous judgment’—there it depends on the defendant's choice, so that nowhere does the undesirable consequence arise of two burdens of proof belonging to both plaintiff and defendant in a single proceeding. Such is the settled rule.

2.1.123

When the answer has thus been recorded in writing, since the establishment of what is to be proved depends on the means of proof, he states in response to the question of who should make the specification of the means of proof:

2.1.124

Then the claimant must immediately cause the means of proof / for the claimed matter to be recorded.

2.1.125

‘Then,’ immediately after the answer, the ‘claimant’—the one having something to be proved—‘immediately,’ at once without delay, ‘must cause to be recorded.’ ‘The matter claimed’ is that which is claimed, that is, to be proved, and is the matter; its ‘means of proof’—that by which it is proved is the means of proof, the evidence. Here, by stating ‘must immediately cause to be recorded,’ it is understood that delay of time is allowed in the delivery of the answer; and this will be analyzed later. By stating, ‘The claimant must cause the means of proof for the claimed matter to be recorded,’ it is said that whoever has something to be proved must cause the means of proof for the claimed matter to be recorded; and hence, in an answer of previous judgment, since the previous judgment itself is what is to be proved, the defendant becomes the claimant, so he alone should cause the proof to be recorded. In a special plea as well, since the reason itself is what is to be proved, the pleader of the special plea is the claimant, so he alone should cause it to be recorded. But in an answer of denial, the prior claimant alone is the claimant; he alone should specify the proof. By stating, ‘Then the claimant must cause to be recorded,’ it is said that the claimant alone must cause it to be recorded, and not anyone else. And therefore, it is understood that in an answer of admission, because there is nothing to be proved, neither the claimant of the plaint nor of the answer has the status of a claimant, so there is no specification of proof at all, and the proceeding terminates by that alone. This very point has been clearly stated by Hārīta:

2.1.126

‘When previous judgment or a special plea is stated, the defendant should specify the proof; / but when a denial is stated, the prior claimant [must do so]; in an admission, it does not exist.’ / Thus. || 2.7

2.1.127

Upon its establishment, he attains success; otherwise, the reverse.

2.1.128

‘Upon its establishment,’ that is, upon the fulfillment of that means of proof, that evidence, whose characteristics such as written documents and witnesses will be described, ‘he attains success,’ that is, the success of what is to be proved, characterized by victory. ‘Otherwise than this,’ in a different manner, upon the non-establishment of the means of proof, ‘the reverse’—he attains the non-establishment of what is to be proved, characterized by defeat: this is the syntactic connection.

2.1.129

Having thus stated the form of a legal proceeding, he concludes:

2.1.130

This legal proceeding has been demonstrated / as having four stages in disputes.

2.1.131

The legal proceeding mentioned in ‘The king should oversee legal proceedings’ (YDh 2.1)—this legal proceeding has thus been demonstrated, described, as ‘having four stages,’ by conceiving four parts, in disputes such as the recovery of debts. Among these, the first is the plaint stage, in ‘[the plaint] is to be recorded in front of the defendant.’ The second is the answer stage, in ‘the answer of one who has heard the matter is to be recorded.’ The third is the proof stage, in ‘then the claimant must immediately cause to be recorded.’ The fourth is the judgment stage, in ‘upon its establishment, he attains success.’ As has been stated:

2.1.132

"When men have disputes among themselves regarding their own claims, / the settlement arrived at through logical discourse is declared to be a lawsuit. / Encompassing four parts through the sequentially functioning plaint, answer, proof, and realization of the claim, it is called four-footed."

2.1.133

In an answer of admission, however, since no proof is indicated and the subject of the plaint does not require proof, there is no stage characterized by realization of the claim; thus it has only two stages. Since deliberation—characterized as the reflection of the assessors immediately after the declaration of the answer as to whether the burden of proof should fall on the plaintiff or the defendant—is not stated by the Lord of Yogins to be a stage of a lawsuit, and because it is not directly connected with the litigant, it is established that it is not a stage of a lawsuit. || 2.8

2.1.134

Thus ends the section on the General Principles of Legal Procedure.

2.2.1

Having thus stated the general principles of legal procedure useful in all lawsuits, he now speaks in order to show a specific exception in a particular kind of lawsuit:

2.2.2

Without clearing himself of the accusation, one must not file a counter-claim against him;

2.2.3

'An accusation' (abhiyogaḥ), meaning an offence, is so called because one is accused of it. Without clearing—without refuting—that accusation, one must not file a counter-claim against this accuser, that is, one must not charge him with an offence. Even though a special plea (pratyavaskandana) has the character of a counter-plea, nevertheless, because its nature consists in dispelling one's own offence, it is not an object of this prohibition. Hence this prohibition applies to a counter-claim that does not involve the refutation of one's own charge. This is stated with reference to the defendant.

2.2.4

Now he states [the rule] with respect to the plaintiff:

2.2.5

nor [shall another accuse] one who is accused by someone else; nor should he alter what has been stated.

2.2.6

Another plaintiff must not accuse someone who has been accused by someone else and whose accusation has not yet been disposed of. Moreover: what has been stated—what was declared at the time of the initial complaint—he must not bring into a state of contradiction, that is, he must not alter it. The meaning is this: an object that was described in a certain form at the time of the initial complaint must be written down in that very same form at the time of the plaint, not otherwise.

2.2.7

[Objection:] Surely this was already stated in the rule: "It must be written down in the presence of the defendant just as informed by the plaintiff." For what purpose is it said again, "He must not alter what was stated"?

2.2.8

[Reply:] It is explained [as follows]: By the phrase "just as informed by the plaintiff," it was stated that the very object reported at the time of the initial complaint must be written down in the exact same manner at the time of the formal pleading, and even within the same title of law, it cannot be a different object. For example, having stated at the time of the initial complaint, "A hundred rūpakas were taken by him at interest," one must not say at the time of the formal pleading in the defendant's presence, "A hundred garments were taken at interest." If that were so, even without moving to another title of law, he would be liable to punishment as a defective claimant because of moving to another object. By the phrase "he must not alter what was stated," switching to another title of law is prohibited even when the object is identical—such as when one says at the time of the initial complaint, "Having taken a hundred rūpakas at interest, he does not repay them," and then at the time of the formal pleading states, "He forcibly seized a hundred rūpakas." There, moving to another object was forbidden, but here, moving to another title of law is forbidden; thus there is no redundancy. This very point has been clarified by Nārada:

2.2.9

"He who, abandoning his initial claim, relies on another again, / that man is surely to be known as a defective claimant because of switching the title of law." / (NSm Mā 2.24)

2.2.10

A defective claimant is liable to punishment, [yet] he does not lose the underlying matter in dispute. Therefore, this instruction beginning with "without having disposed of an accusation" is solely for the purpose of avoiding lapses by the plaintiff and defendant, not regarding the success or failure of the underlying claim itself. For this very reason, he will state later: "Dispelling technical deceit, the king should conduct legal proceedings according to the truth" (YDh 2.19). And this is to be understood in property disputes. But in a dispute arising from anger, if an erroneous statement is made, one indeed loses even the underlying legal suit. As Nārada says:

2.2.11

"In all property disputes, one does not fail through a slip of the tongue; / in [disputes concerning] another's wife, land, or recovery of debts, although punishable, he does not lose the claim." / (NSm Mā 2.25)

2.2.12

The meaning of this is: In all property disputes, not in those arising from anger, even in the case of a slip of the tongue, that is, an erroneous statement, "he does not fail"—he is not defeated. The meaning is that he does not lose the underlying claim. An illustration here is "another's wife," etc. Just as in cases involving another's wife, land, and recovery of debts, although punishable on account of an erroneous statement, he does not lose the underlying claim, so it is in all property disputes. From the specification "in property disputes," it is understood that in disputes arising from anger, when an erroneous statement is made, one indeed loses even the underlying claim. For example, if someone states at the time of the initial complaint, "I was struck on the head with a foot by him," and then at the time of the formal pleading states, "I was struck with a hand or with a foot," he is not merely liable to punishment, but is also defeated. || 2.9

2.2.13

He states an exception to the rule: "Without having disposed of an accusation, one may not counter-accuse him."

2.2.14

And one may bring a counter-accusation in an altercation and in cases of violent crime.

2.2.15

In an altercation consisting of verbal abuse or physical assault, and in violent crimes consisting of taking life by means of poison, weapons, or the like, when there is occasion for a counter-accusation, he may counter-accuse the accuser even without having disposed of the accusation against himself. [Objection:] Surely here too, because it is not an answer since it does not refute the opponent's assertion, when the counter-accusation is a different claim, the impossibility of simultaneous litigation is the same! [Reply:] True. The instruction for a counter-accusation here is not for the sake of simultaneous litigation, but rather for obtaining a reduced punishment or for averting a greater punishment. To explain: In the accusation, "I was struck or cursed by him," if there is a counter-accusation, "Previously I was struck or cursed by him," there is lightness of punishment. As Nārada says:

2.2.16

"He who reviles first surely incurs guilt; / he who does so afterwards also acts wrongly, but the punishment for the first is heavy." / (NSm 15–16.10)

2.2.17

When, however, there is a simultaneous engagement by both in striking or the like, in that case there is an avoidance of excessive punishment:

2.2.18

"When two people engage simultaneously in abuse or violent crime, / if no distinction can be found, their punishment should be equal." / (NSm 15–16.9)

2.2.19

Thus, even though the simultaneous conduct of legal proceedings is impossible, a counter-accusation is purposeful in altercations and the like, but in the recovery of debts and the like it is entirely useless.

2.2.20

Having stated the rule for the plaintiff and defendant, he states the duty of the chief judge together with the assessors:

2.2.21

A surety capable of executing the outcome must be taken from both.

2.2.22

From both the plaintiff and the defendant in all disputes—the effect of the judgment is the execution of the outcome (the prior placement of the word kārya is on account of its inclusion in the āhitāgni class)—a surety who is capable of that which is the effect of the judgment, namely payment of the proven money and payment of the fine (a surety [pratibhū] is one who stands in place of that duty, that is, acts like him) must be taken by the chief judge together with the assessors. In the absence of one, guards must be appointed for the guarding of the plaintiff and defendant. And daily wages must be given to them by both of them. So Kātyāyana says:

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