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Hindu Law and Custom (Recht und Sitte) c8: III. Law of Property and Contract

Hindu Law and Custom (Recht und Sitte) c8

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III. Law of Property and Contract

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§ 26. Possession, ownership and prescription. Ownership and possession are fully distinguished in Indian law. Possession is expressed by the derivatives of *bhuj* "to enjoy, use, possess" and the pronoun *svam* "self" and its derivatives such as Svāmin "owner," Svatva, Svāmya, Svāmitva "right of ownership" as well as substantives such as Dhana, Dravya, Riktha etc. in the sense of "possession, property, inheritance," serve to express ownership. The essence and origin of ownership have been the subject of philosophical disquisitions even in very ancient times¹.

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¹ Applying the strict canons of law to the Smṛtis Dr. Breloer has arrived at the conclusion (Kauṭatiya Studien, I. Das Grundeigentum in Indien, pp, 36–37) that like the Greeks the Indians too never made any distinction between possession and ownership ('rechtliche Herrschaft' as opposed to 'tatsächliche Herrschaft'). As far as the older Smṛtis are concerned Dr. Breloer is perfectly right, but he seems to have taken no notice of the statement in the Smṛtisaṅgraha quoted below. The author of the Smṛtisaṅgraha (and his followers) was fully conscious that there is something indefinable in ownership which cannot be proved by circumstantial evidence but by the science of law (Śāstras). *Tr.*

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Thus according to Gaut. 10, 39 the sources of the right of ownership are inheritance, purchase, partition, seizure (of unclaimed property) and finding, over and above which the Brahmans have the acceptance of presents, the Kṣatriyas the booty of war or conquest and the Vaiśyas and Śudras the wages for labour. In this connection the seizure of an unclaimed property is of particular importance in establishing ownership. For this reason a person who makes a piece of fallow land arable by felling the trees on it becomes the owner of the soil (M.

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9, 44). Similarly the hunted deer belongs to him who hits it first; he who hits it later has shot his arrow in vain. A person earns a certain right even merely by cultivating a field which is lying fallow for the time being. In Indian inscriptions the expression is often met with that a village or a piece of land is presented *bhūmicchidranyāyena*. It is clearly meant by this that the donee is endowed with all the rights of him who makes a fallow land arable for the first time and this is exactly the view of the law-books¹. According to the latter somewhat similar rights upon a piece of land may be gained if it has remained fallow for 5 or 3 years or at least for 1 year (*aṭavi, khila, ardhakhila*). True, the legitimate owner may reclaim it from the cultivator, but the latter may keep his profit and must be indemnified by the owner for his labours (Nār. 11, 23-27).

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¹ Bühler EI 1, 74.

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Partial ownership by bringing under plough a piece of land lying fallow for some time.

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According to other authors only the following three are the legitimate means of livelihood common to all the castes: inheritance, presents and the dowry of a wife. This classification of the means of livelihood is crossed by another, probably of later origin, according to which there are (1) seven white means of livelihood, namely, religious learning, bravery, mortification of the flesh, (the dowry of a) bride, teaching, sacrifice and inheritance; (2) seven spotted means of livelihood, namely, lending money, agriculture, trade, the nuptial fee (for a girl), crafts, service and wages (for a service rendered); (3) seven black means of livelihood, namely, bribe, gambling, bearing message, (causing) pain, forgery, robbery and fraud (Nār. 1,44-49. Cf. Vi. 58). The profits gained by the employment of property, specially in sacrifices and other religious deeds, depend to a large

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Various means of livelihood.

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extent, on the manner in which this property has been earned.

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Possession cannot prove ownership. How little mere possession may give rise to the right of ownership is expressed in an oft-quoted text of the Smṛtisaṃgraha: “If anybody holds something in his hands, he does not thereby become the owner of it ; does it not happen, for instance, in the case of stolen goods, that the property of one is found in the hand of another?” “Therefore”, continues the text, “the right of ownership is to be ascertained not through mere natural observation but only by means of science (śāstra) for otherwise it cannot be said reasonably that the property of one has been taken away by another. The legitimate means of livelihood, namely presents, booty, trade and service according to the order of the castes, have been separately enumerated in the science.” This conception that the true right of ownership may be recognised and established only with the help of science had taken root even at an early period in Indian Jurisprudence and philosophy but also a reaction set in already at an early period from the side of those who emphasised that even the means of livelihood enumerated in the Smṛtis are taken solely from the observation of daily life and after all, the legal rules of the Smṛtis like the laws of grammar, merely serve to exhibit and strengthen what is practised at all times and that therefore the right of ownership does not depend upon the science or the sacred laws (śāstra) but upon the experience of the world.¹ While the religio-scientific character of ownership was defended particularly by Jīmūtavāhana, Raghunandana and other representatives

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¹ The arguments of this opposite camp are worth quoting. Mitramiśra says that although the Śāstras recommend certain modes of acquiring property it does not follow that ownership cannot be valid without observing those directions, just as a man does not enjoy his meal the less even though he disregards the rules about keeping one's face turned to a certain direction at the time of eating. Tr.

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It can be established only with the help of Śāstras.

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Two opposite camps representing religious and secular nature of ownership.

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of Bengal the theory that "ownership is temporal"—*svatvam laukikam*—is represented already in the Mitākṣarā, then in the Smṛticandrikā, in the Viramitrodaya, Vyavahāra-mayūkha, Sarasvativilāsa and other works of the south and the west. The last named South Indian work goes perhaps farthest in this direction, inasmuch as it asserts that ownership is originated only by worldly acts while the Mitākṣarā emphasises only the worldly effects of ownership.¹

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¹ Mit. (Bomb. 1882) 189; Viram. (ed. G. Sarkar) 1, 12; May. (ed. Mandlik) 32; Sarasvativilāsa § § 401ff.

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Usucaption which takes place before the eyes of the owner and with his permission is to be distinguished from the seizure of an unclaimed property which has been mentioned above as one of the means of livelihood. The general law is that the legitimate owner forfeits his rights on a property if it is occupied by another, and he, though present, does not raise any claim within ten years (Gaut. 12, 37; M. 8, 147; Vas. 16, 17 etc); the period of ten years appears also to be the usual period of prescription (Nār. 13, 41). Yet this principle was clearly regarded to be dangerous and the attempt to hinder its effect by ordaining as many exceptions as possible is unmistakable. Thus as prescription presupposes a possibility of the claim of the legitimate owner, it is not allowed when the legitimate owner is imbecile in spirit or a minor, i. e. less than sixteen years of age (Gaut. l. c. etc.). In like manner the rights of a man who is not present are to be preserved, for which reason, e. g. a divinity student who performs an observance abroad which occupies him for 36 years or a travelling merchant may reclaim his property when he returns home; his right of ownership is lost only after 50 years of adverse possession if strangers occupy his property and it will never cease to apply where friends and relatives are concerned (Quot. from Nār. 4, 7—10) Accordingly it is emphasised in the law of inheritance that an heir coming from abroad may claim from his family members the share which is his due even though he may be a descendant of the testator who had gone away in the third, fifth or even in the seventh generation (Bṛh. 25, 22—26).

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Moreover, it is essential that the possession should continue without any interruption; usucaption takes place only if it can be proved by means of documents and witnesses that the house or field in question was not *chinnabhoga*, i. e. its possession was not interrupted (Bṛh. 9, 15; Nār. 13, 48). Certain categories of proprietors enjoy this benefit of law that their property cannot in general be lost through prescription; this advantage is enjoyed by princes and their officers, women, Śrotriyas and ascetics besides minors and halfwitted persons, already mentioned above (Gaut. 12, 38; Y. 2, 25; Bṛh. 9, 21 etc.). Prescription of course does not apply to a property which has been lent, deposited or mortgaged (Vas. 16, 18; Nār. 1, 81, etc.) and female slaves (M. 8, 149 etc.) are not lost through adverse possession; this law is perhaps meant for the concubines who are said to remain with their master even at a partition of property (Gaut. 28, 47).

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It is of particular importance in this respect whether the possession extends over immovables or over movable property. According to Gaut. 12, 39 besides the female slaves, animals and real estates too are not liable to prescription. This rule reminds us of one of the texts about the law of inheritance which asserts the indivisibility of the immovables (§ 23). The immovables, originally the only valuable possession, should under no circumstances be lost to the family. Later authors however stances be lost to the family. Later authors however often speak of the prescription of immovable property, only according to Y. 2, 24 its possession should extend over twenty years, that is, double as long a period as in the case of movable properties. Later Smṛtis generally advocate longer periods for usucaption and prescription; thus Bṛh. 9, 7 speaks in general of 30 years Kāty. 8, 6¹ even of 60 years.

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¹ Bandyopadhyaya, 242. Tr.

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Moreover, the law of the right of acquisition or possession (*āgama*) was gradually developed. If the possessor can prove that the disputed property was earned through purchase, present or in any other legitimate way, then he must be left in the safe enjoyment of the same (Vi. 5, 185); on the other hand, one who cannot prove himself to be the legitimate owner by means of documentary evidence or otherwise, would be regarded as a thief and punished accordingly, however long he might have had the property in his possession (Nār. 1, 85—87). Yet however according to the later authors there is a kind of legitimate usucaption without any title of ownership.

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Thus already in the case of the son of the first possessor the possession is regarded as more than mere right of acquisition if already between the first possessor and a pretender no dispute had arisen which was not afterwards satisfactorily settled. The possession (Bhukti) however becomes quite indisputable and independent of any right of acquisition when as *tripuruṣāgatā* it has lasted three generations. Thus we have expressions as *pauruṣī*, *dvipauruṣī*, *tripauruṣī bhukti*, "possession for one, two or three generations," in which each generation is reckoned by 36 years. The "possession for three generations" particularly should be considered as possession from time immemorial; the Mit. and other commentaries explain this term by a period exceeding 100 years (Vi. 5, 186 f.; Y. 2, 27-29; Nār. 1, 88-91; Bṛh. 9, 23-29; Kāty. 8, 1-8).¹ The following rules involve an encouragement of pious gifts, viz. even a possession of three generations cannot prevail against a grant (śāsana), and that a complex of immovables occurring in such a grant should wholly belong to him who actually possesses even only a part of it (Bṛh. 9, 30 18).

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¹ Bandyopadhyaya, 239 ff. Tr.

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The tendency to prevent an occupation and prescription of the family property by a stranger is connected with the original indivisibility of the same (§ 23) and may be observed even to-day in the customary law of the South.² For this reason the family property is lost only after 100 years of adverse possession and even then only if the possession is uninterrupted ("Nywedbhogy"=Nirav-adhibhoga?; if possession is interrupted ("Suwedh-bhogy"=Sāvadhibhoga?) the occupier has to hand over the property occupied by him to the legitimate owner, though however he receives compensation ³. He who buys mortgaged immovable property from the mortgagee may, after 60 years, consider it as his own free property, excepting where the original proprietor has repeatedly raised his claim and thereby has prevented its being lost to himself⁴. Even the expression Khil has been preserved in the modern dialects to signify fallow land (=Khila). In the third year after bringing it under plough it is called Kṣet=Kṣetra ⁵. The rights of the absent heir is carefully preserved particularly in the Punjab, yet after returning home the heir has to make good the expenses of his relatives ⁶. For the Śāsanas see § 35.

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² West and Bühler (3rd. ed.) 692.

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³ Steele, castes 282 f.

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⁴ l. c. 253.

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⁵ Grierson, Bihār Peasant Life § 797.

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⁶ Tupper 3, 145ff.

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§ 27. *Common fields and boundary disputes.* It is more important for the historian to arrive at a solution of the question whether communal or private property was the chief form of ownership than to decide whether the origin of property was secular or religious. The joint property of distant family relations was doubtless very much in vogue (§ 22); but the traces of a common property of the whole village community are much less clear and the data in the Smṛtis are much less definite on this point. The village of course forms the political unit—the smallest unit in the scheme which the Smṛtis (Vi. 3, 7ff. etc.) prescribe for the management of an Indian principality. At the head of the village stands the Grāmadhipa or Grāmaṇi, Grāmakūṭa, Grāmapati or Paṭṭakila of the inscriptions—the modern Patil, the Gāmabhojaka of the Jatakas. It is a hereditary office though however the officers are appointed by the king; the village headman exercises the authority of a criminal police, imposes taxes on the farmers or exempts them from taxes and hands over the collected taxes to his superior after taking away his own share.

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The inhabitants of a village also jointly bear the responsibility of the theft of cattle which is suspected to have been committed by one of the inhabitants of the village if the foot-marks of the stolen cattle may be followed up into their village and cannot be followed further from there (Nār. 14, 23). The village has definite boundaries on every side which mark it off from the neighbouring villages; see below. In a wide circle round the village extends the pastureland; its breadth should be 100 ‘bows’, i. e. 600 feet, or more according as it is a large village or a “city” (M. 8, 237; Y. 2, 167). On the pasture land, which on that account is reckoned among the indivisible properties (M. 9, 219; Vi. 18, 44), graze and wander the cattle of the inhabitants of the village under the surveillance of the cowherds who have to prevent the cows' doing mischief to the adjoining fields (M. 8, 240 etc.).

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On the other hand the fields, mostly furnished with hedges, appear always to have belonged to individual proprietors (Kṣetrin, Kṣetrika, Kṣetrasvāmin), who therefore may demand compensation for injury done to their property (M. 8, 241 etc.).¹ The principle of ownership of the field also serves as the theme of comparisons and it is specially indicated when, for instance, it is said that if a seed is carried off by wind or water into another field and there generates into a tree and bears fruits, then it becomes the property only of the owner of this field (M. 9, 54; Nār. 12, 56). The fruits of such trees as grow on the boundary line between two fields should belong to the owners of both the fields (Nār. 11, 13). The tenant of a field who pays to the owner half the crops as rent, is called Ardhika, Ardhasirin (Vi. 57, 16 etc.); an idle tenant will be punished and must hand over the rented field to some other person for cultivation (Y. 2, 158).² Moreover, the organisations mentioned by Bṛh. 14, 21—26 for jointly cultivating the soil have evidently nothing to do with the original joint possession of the fields because he recommends great caution in the selection of partners and describes these agricultural associations in connection with the rules of trading companies.

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¹ Dr. Breloer however says that all this does not prove individual ownership ('rechtliche Herrschaft' as opposed to 'tatsächliche Herrscheft') for even a simple possessor of the field would have enjoyed this protection of law (Kauṭalīya Studien, I. Das Grundeigentum in Indien, pp. 39 ff.). Tr.

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² Meyer (Rechtsschriften p. 124) has translated this passage of Y. in quite a different manner and makes it yield a meaning which in his opinion proves Y.'s dependence on Kauṭ. who lays down that fields should be taken away from idle owners. But Meyer's translation is based on a highly improbable interpretation of the word phālāhata. Tr.

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Rather two anonymous texts quoted in the Mit. 191 f. (1, 1, 31 f. Colebrooke) may refer to a joint ownership and to the village community’s right of cancellation. One of these texts declares the sale of immovables to be generally inadmissible and even says that it is possible to mortgage it only with the permission (of those in authority); according to the other text alienation of the ownership of a piece of land is subject to six conditions, namely the consent of the village community (*svagrāma*), of the relations, neighbours (*sāmanta*) and of the heirs and the gift of gold and water (symbol of a gift). The commentators of course interpret this text in all possible manners; as for example, they find in it the assistance of the village community etc., in merely authenticating the act; yet however the passage may be a relic of a time or region in which the community actually possessed the right of prohibiting the alienation of property.

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That in general the villages were indeed secluded from outside but inside every village private property was in evidence¹, is best proved by the rules of the Smrtis about boundary disputes which must have been one of the most common grounds of litigation. Here we have the boundary (*sīmā, maryādā*) between two countries and villages as well as the boundary between to houses and fields.

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¹ See f.-n. 1 p. 204 *Tr.*

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The boundary line is either visible (*prakāśa*) or secret (*aprakāśa*). By visible boundary generally the boundary marks (*setu*) are meant, which according to M.8, 245 are best visible in summer when the sun has scorched all grass and plants; the proper meaning of *setu* is “dike, ridge of earth” as the dikes are specially mentioned as boundary marks and even to-day, e. g. in Behar, they serve to indicate the boundaries of a field ².

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² Grierson, Bihār Peasant Life § 833.

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Natural boundary

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Natural boundaries too belong to the category of visible boundaries, particularly hills and rivers which serve to divide two adjacent countries or adjacent villages. Tall trees, as for instance holy fig-trees, palms, bamboos, banyan trees are likewise pointed out and further shrubs and briers, heaps of stones, natural or artificial elevations, ant-hills, lakes, ponds, wells, cisterns, canals, streets, depressions, ditches, sanctuaries, temples etc. serve the same purpose.

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Invisible boundary.

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Secret boundary marks are stones, bones, charcoal, potsherd, sand, ash, dried cow-dung and other objects not easily destroyed by earth which are filled in pots and buried in the ground on the boundary line for which reason such a boundary is called boundary of buried things (*naidhāni sīmā*). The secret marks should be shown particularly to the children and the latter, when they grow up to be men should show them again to their children, and thus the knowledge of the boundary is propagated from generation to generation (Bṛh. 19, 6 f.). Severe corporeal punishments and fines (Vi. 5, 172; M. 9, 291; Y. 2, 155) are prescribed for shifting a boundary as well as for encroaching on an adjoining field, as for instance, if a man violates the boundary when driving the plough and goes beyond it.

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Punishment for violating the boundary.

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Legal procedure of settling a boundary.

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In the laws about the settlement of boundary disputes principally the case of dispute between two neighbouring villages has been taken into consideration. In these cases boundary marks have to be searched and evidences are to be taken, and the evidence of ancient and respectable inhabitants who are settled (*maula*) there for a long time is regarded as decisive, although particularly at that time they may live in another place; next, the evidence of the neighbours is taken or generally of those who often have to stop in the neighbourhood of the disputed boundaries, be it for ploughing or as cowherds, fowlers, snake-catchers, hunters,

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The witnesses.

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fishermen, root-diggers and forest rangers of every sort. According to the commentators these people are in a position to know best the boundaries of the villages which may often lie on wastes or wildernesses on account of their unstable and changing mode of life.

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In order still more to enhance the solemnity of the event the witnesses or the neighbours selected as arbitrators are to put on red robes and red garlands, sprinkle earth over their heads and in this pageantry visit the boundary and fix it; otherwise a single person who enjoys universal confidence is appointed for this purpose (M. 8, 256; Y. 2, 152; Nār. 11, 10). Such an act has the character of an ordeal; it is therefore watched whether he who fixes the boundary is visited by any mishap within a short time in which case his decision is regarded as false (Kāty. 18, 19).¹ Attempts are made to secure dependable depositions by threats of high fines for giving false evidence. If the border people are bribed and intentionally give false evidence, distant neighbours should be heard (Kāty. 18, 10).² As a last resort, the king should settle the boundary; according to M. 8, 255 the king should be appealed to as a rule in all the boundary disputes and the names of the witnesses should be entered in a document; the boundary document *sīmāpattra* is also mentioned elsewhere.

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¹ Bandyopadhyaya, 582. Tr.

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² Ibid. 572. Tr.

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We have a whole series of successive appeals in the case of disputes over a house or a field, namely, (1) decision of the boundary dispute by the neighbours; if they are not unanimous, (2) by means of documents; (3) by the elders or other representatives of the village or the city or it should be decided by (4) uninterrupted possession for ten years (Śaṅkhalikhita). Also differences over gardens, plantations, wells, temples, tanks, inns, palaces, conduits for rain water and other immovables are mentioned—all of which reveals a highly developed individual property.¹ The rules connected with the changes of a river-bed and the boundary between two neighbouring villages or fields along this river-bed remind us of the frequency of great floods in India: the gain or loss arising from it should be taken quietly as a disposition of God just as a man cannot resist a royal command; yet however if a piece of tilled ground is swept away by the floods and deposited somewhere else it should be left in the possession of the original proprietor till the harvest time (Bṛh. 19, 16—21).

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¹ See f.-n. 1 p. 204. Tr.

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There are special laws about the dikes (setu) and wells on account of their importance, which along with a series of other rules with regard to policing are generally subjoined to the chapter on boundary disputes. If anybody constructs a dike on the land of his neighbour the latter should not obstruct him if thereby only a little land is lost and the gain in water more than makes up for the loss in ground. On the other hand he who repairs an old and dilapidated dike without asking the permission of the owner of the field, will not be allowed to use it; that can be allowed only after the death of the owner and his heirs and after obtaining royal permission (Nār. 11, 17—22 ; Y. 2, 156).

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The proprietors of two adjacent houses must be careful to have due consideration for each other; thus it is forbidden to obstruct or injure a veranda, window, drainage pipe or a shop etc. or to construct a privy, a fire-place, a receptacle for leavings or to dig a pit or to open a window or to drive a drainage pipe in the immediate vicinity of the neighbouring houses (Kāty. 18, 20 f.; ² Bṛh.

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² Bandyopadhyaya, 583—584. Tr.

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19, 24—26). A distance of at least three feet or two Aratnis must be observed (Vas. 16, 12 ; Kāty. 18, 22¹). Also public roads, bathing places, gardens etc. cannot be misused, defiled or obstructed for similar purposes (Nār. 11, 15 f. ; Bṛh. 19, 27 f. ; Kāty. 19, 23—26²).

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¹ Ibid. 585. Tr.

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² Ibid. 589—92. Tr.

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The joint ownership of the fields is often seen to-day specially in the Punjab. There the villages are divided into three classes according to the constitution of the land-tenure system, which in the official jargon are called Zamīndārī, Pattīdārī and Bhayācāra villages. In the Zamīndārī system properties are absolutely held in common, inasmuch as the whole of the proceeds of the pieces of land is put in a common coffer and is divided among the family-heads after the expenses have been deducted from it. In the Pattīdārī system the soil, held in common, is divided into lots (patti), as is found in private property, but they can however be redistributed periodically. In the Bhayācāra (bhrātṛācāra) system every family tills its own ground as its free property. Sometimes these three systems are regarded as historical steps from absolute common possession of the soil to pure private property ³. On the other hand Baden-Powell is of opinion that some of the Bhayācāra villages came into existence through the decline of former village communities with joint ownership of the fields, but it is improbable that all of them came into existence in this way. The state of things described in M. is in his opinion preserved in the land tenure system of the N. W. Provinces : the land is divided into small principalities, pure private property of individual families in the villages, great land-owners, nobles etc. through the villages being bestowed upon them as fiefs and the inheritance of these fiefs in their families so that they frequently become common property till it is divided again.¹

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³ Tupper 2,2 ; Mayne § 197 etc.

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¹ Baden-Powell, A Manual of the Land Revenue Systems and Land Tenures of British India (Calc. 1882) 395 f.

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In the Punjab on the other hand joint settlements of particular tribes appear to be the usual cause of joint ownership of fields²; perhaps these tribes are meant by the agricultural organisations mentioned in Bṛh. As recommended by the Smṛtis, common pasture grounds are often found even where the fields are private properties. Inscriptions often refer to fields which bear particular names or are designated by the names of their proprietors, so that here too purely private property is in evidence as prescribed in the Smṛtis. The boundaries of villages in the four cardinal points are carefully described in the donative grants, on account of which a village described in that manner is called *caturāghāṭaviśuddha* "fixed by four boundaries". Rivers, mountains, trees, hillocks, tanks etc. are utilised in marking the boundary if simply the names of the adjacent villages are not given. Also the boundaries of fields are fully described; thus in a Śāsana of 1091 A. D. the boundaries of a granted field is described in this manner: the names of the fields lying to the east and the south of it and the names of the owners of these fields are mentioned and the boundaries of a certain village are given as its western and northern boundaries.³ About the fixing of the boundaries see § 34. In Behar even to this day there is a proverb about the necessity of keeping the boundary ridges in order, in which the farmer who does not look after the boundary ridges of his fields is compared with an ape fallen from a bough.⁴

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² l. c. 393-399.

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³ E.I. 1, 317 f.

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⁴ Grierson l. c. § 834.

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§ 28. *Interests.* The movable property is differentiated from the real estate or the immovables (*Sthāvara*), literally "fixed and motionless property" which may consist of pieces of land, plantations, fields, woods, houses etc., including however also rents out of a piece of land and income from a donation (*nibandha, vṛtti*); very probably cattle was the most primitive form of movable property, particularly animals giving milk (*dohya*) and beasts of burden and animals used for riding (*vāhya, vāhana*). The standpoint of the Vedas that the cows are the proper medium of trade is still in evidence particularly in many Prāyaścittas and in the compensation for murder and then also in marriage (*ārsa*, § 16). Yet metal money is predominant, particularly the already very old Kārṣāpaṇa,¹ as in the laws of punishments most of which are fines (M. 8, 131—138 etc.). The formulas of oaths and ordeals are regulated according to the value of the disputed object estimated in gold (Vi. 9,4), and thus we find here a pure gold currency. The Greek disignations Dīnāra=dynários and Dramma=draxmy are mentioned only in later works and also the Suvarṇa, which occurs at quite an early date, is later equated with the Dīnāra in value. Besides the money and the domestic animals, male and female slaves, who are comprehended in the term "two-footed," ornaments, corns, fruits, metals, and other raw products, weapons and dresses are the principal items of movable property.

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¹ Cunningham, Coins of ancient India (Lond. 1891) 1—3,42-54.

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In contrast to assets (*dhana*) there is the liability (*ṛṇa*), and the development of the conception of the latter is the same as that of *debitum* and our [German] *Schuld* (from *skulan*). The general significance "obligation" is still retained even in the Smṛtis, and particularly in the Conception of liability and assets. theory of the three-fold debt consisting of sacrifices, raising of a son and the recitation of the Veda, which has to be paid to the gods, ancestors and the Ṛṣis respectively. On the other hand the word ṛṇa is already known in the Veda in the sense of an obligation of payment and in Indian arithmetic too the conception of "minus" is expressed by ṛṇa ("plus" by dhana or sva).

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"Recovery of debts" is the first of the eighteen titles of law; in most of the laws regarding procedure, complaints of debts are referred to in the first line and even the whole procedure of witnesses forms only a part of the law of debts in M. and Nār.

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High antiquity of the law of debt. The high antiquity of the law of debt is suggested also by its vigorous emphasis on religious motives; unpaid debts pursue the debtor even into his future birth, so that he is reborn as a slave in the house of his creditor in order to pay off the debt by his labour and the religious merit of his sacrifices and penances is transferred entirely to his creditor (Nār. 1,7-9).

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Usury condemned. On the other hand, similarly from a religious standpoint, the trade of a money-lender and particularly of the usurer (vārdhuṣin) is regarded as immoral. Even in the extremity of distress a Brahman should not practise usury (Nār. 1,111); the usurer is placed on the same footing as the thief (Y. 1,132) and in a future existence he is reborn as an epileptic (Vi. 45, 26).

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Even simple interest is deprecated. Also taking interest apart from all other considerations, even without exceeding the allowed rates, is a means of livelihood of doubtful quality (Nār. 1,46) and according to Bṛh. 11,2 interest is called Kusida because it is extorted from a hard pressed man by a centemptible (Kutsita) person. This means of livelihood is however permitted to the Vaiśya and in Āpaddharma, the law in the time of distress, we find along with the above-mentioned prohibition also the laxer view that in such times even Brahmans may live by lending money at interest (M. 10, 116 f.; Y. 3, 42).

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As usury cannot be altogether stopped, it had to be limited as far as possible, and this the Smṛtis attempt to do particularly by rules about the limit of the permissible rate of interest and the length of the period for the accumulation of interest. It is a general opinion that where gold has been lent the interests in arrear cannot exceed the amount of the principal and that the interest stops as soon as this maximum is reached. Opinions are divergent regarding the maximum in the loan of other things which may be the result of the differences in local usages emphasised by Nār. 1, 105 f. The interest is paid in kind. According to the particularly detailed rules of Bṛh. 11, 13—16 the accumulated interest in the case of clothes and base metals may make the debt treble, in the case of corns, fruits, beasts of burden and wool quadruple, in the case of vegetables quintuple, in the case of seeds and sugarcane sextuple, in the case of salt, oil, intoxicating drinks, sugar and honey the interest may make the debt octuple, while in the case of grass, wood, brick, thread, stuffs from which spirituous liquor can be extracted, leaves, bones, leather, weopon, flowers, fruits either (according to one reading) the interest may increase unlimitedly, or (according to another reading) no interest should be charged.

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This extraordinary amount of interest is possible on account of the fact that the rate of interest is very high and according to a rule which M. 8, 140 ascribes to Vas. and which is actually found in Vas. 2, 51, the interest should be 1¼ per cent. per month, that is 15 per cent. per annum; but if the debtor belongs to the lower castes and in the case of insufficient security, it may rise to 5 per cent. per month, that is 60 per cent. per annum, what according to M. 8, 152 is the maximum. Debtors of higher castes should be favoured and the rates of interest decrease according as the debtor belongs to a high caste so that the Brahman has to pay only 2 per cent. per month in the case of loan without security.¹ If there is a particular risk, still higher rates may be charged; thus merchants who wish to travel through a wilderness should pay 10 per cent. and those who would make a voyage should pay 20 per cent. (Y. 2, 38) because in such loans even the principal is endangered (Mit.); generally any interest voluntarily promised should be paid by every man (Vi. 6, 3 etc.).

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¹ It is significant that Kauṭilya ignores the caste privileges in the law of debt. *Tr.*

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The law-books seek to effect a limitation of usury also by forbidding certain particularly oppressive forms of interest and by declaring certain debts to be free from interest. Thus M. 8, 153 forbids taking interest beyond one year and also such as is unapproved i. e., according to the oldest commentaries, all short period interests, interest on interests, periodical or monthly payable interests, and usurious interests fixed on special agreement as well as body interests, i. e. those which would have to be worked off by physical labour of a man or an animal (kāyika, according to another explanation daily payable interest). Of course this passage and other similar passages are in open discord with the rules of other law-books; M. himself in 8, 155 permits compound interest in the veiled form that in the renewed agreement the interests in arrear should be added to the principal and the same process is observed to this day. M. also allows the working off of a debt (8, 177). *Inter alia*, the following are mentioned on which no interest can be charged²: reward, gambling debts, improper promises (e. g. made to a courtesan), deposits, the price for a purchased ware, friendly loans, loans particularly mentioned to be free of interest (*uddhāra*, which is explained as *niṣphalam ṛṇam*), and articles lent for use (*yācitaka*), as well as the property of a woman (*Strīdhana*) used by the male relations with her permission, liabilities for securities, fines and the articles mostly of little value such as wood, grass, thread etc. mentioned in Bṛh. 11, 16 referred to above, the reading of which however is certainly faulty. Yet under certain circumstances e. g. if the debtor refuses to the take back the property or generally after the lapse of a short period, interests could be charged on some articles of these categories and indeed at the rate of 5 p. c. per month, which is another proof of the universality of this rate of interest.¹ A loan is free of interest also when the creditor refuses to accept the due interest and particularly if the debtor deposits the interests with a trustworthy person (Y. 2,44).

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² Cf. [my Ind. Schuldrecht, Sitzungsberichte d. b. Ak. d. W. 1877. 295 f.

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The expressions Kusīda and Kusīdin are found already in the TS and in the Nirukta and the designation of percentage by numerical adjectives, occurring in M. 8,142, was already known to Pāṇini 5,¹,47 and he also uses the expression Vṛddhi "interest" and on the other hand also speaks of articles lent for use (*yācita, yācitaka*) which are free of interest (4,4,21). Accordingly, no importance evidently should be attached to the statement of Megasthenes fragment 27 B, where it is said that the Indians are unacquainted with the conception of interest (*oute daneizousi oute isasi daneizeshai*²). The Nasik inscriptions offer us ancient epigraphical documents for interests and the limit of the rate of interest from the first century A. D. downwards³.

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¹ Hopkins perhaps goes a little too far when he says "no stipulation beyond five per cent. *per mensem* is legal" (CHI p. 287), *Tr.*

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² The Indians neither put money out at usury nor do they know how to borrow (Mc Crindle). *Tr.*

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³ Arch. Surv. W. I. 4, 101 ff.

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Thus there are mentioned interests to the amount of 100 for 2000 and 75 for 1000 Kahāpaṇas (Karṣāpaṇas) i. e., as these are very probably monthly interests, 60 p. c. and 90 p. c. respectively ; the first rate agrees with the rate of interest laid down in the Smṛtis.

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High rates of interest at the present day. Even at the present day the rate of interest is still very high, particularly in the country. Thus in Bengal the farmers have to pay 50 p. c. for advances in corn at the time of sowing to the Mahājan (Mahājana) “village banker” corresponding to the Kusidin or Vārdhuṣin of the Smṛtis ; as laid down in the Smṛtis, the interest is paid in kind and the Mahājan has the right of a mortgage bottomry on the corn reaped. 2 p. c. per month is allowed for advance in money¹. In Behar where the ancient expression Mul for “principal” (Mūla), Khaduka for “debtor” (Khādaka), Udhār (Uddhāra) for loans on which no interest can be charged are still in evidence, there is a whole series of different expressions which vary from province to province to designate the interest for seed-corn to be paid in kind after harvest and for every grade of the rate of interest, which here too often amounts to 50 p. c.² According to Steele in Bombay, 1/2—1 p. c. per month were charged for loans on security from well-to-do farmers, but it is also seen in Puna and Southern Mahārāṣṭra that a farmer at the end of the year has to return 1 1/4 times as much or even double the amount of the grain lent to him. There is a particular word (dāmupat) in Mahrathi to designate the principal doubled by interests ; when this doubling takes place, the interest as a rule, as laid down in the Smṛtis, ceases to accumulate, though triplication (tripat) is allowed in the case of the loan of grains. Small traders have to pay sometimes even 6 1/4 per cent. per week and the rate

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¹ Phear, The Aryan Village (Lond. 1880) 62—64. Cf. also Kohler ZVR 9,352 (according to Hunter).

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² Grierson §§ 1475-81.

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Duplication or triplication of the principal.

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of interest also depends generally on the circumstances and the caste of the debtor. The money-lenders are often Brahmans. There are also loans on which no interest can be charged ¹. Dubois says that 20 p. c. is the minimum, 100 p. c. the maximum and 50 p. c. the usual rate of interest in Mysore ².

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¹ Steele, Castes 266 ff., 247.

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² Dubois, People of India 496.

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§ 29. *Debts, pledges and sureties.* The liability for debts according to the earlier developed principles of the family law and joint property (§ 23), extends over all the members of the family if the debt is incurred for the benefit of the whole family (*kuṭumbārthe*), particularly however the responsibility lies on the chief of the house-hold (*kuṭumbin*) and passes over to his heirs, and here too as in the law of inheritance, taking admission into a religious order or disappearance is regarded as equivalent to the death of the testator (Vi. 6, 27-39 etc.). How far the debts of the testator are transmitted to the descendants is a matter of dispute, for e.g. according to Vi. l. c. and Nār. 1, 4 only the sons and grandsons are liable and according to Bṛh. 11,49 the grandsons have to pay only the principal without interests, while on the other hand, according to Nār. 1, 6 the great-grandsons too are liable for the debts of the great-grandfather. The same difference of opinion may be seen also in the commentaries. Thus the Mit. on Y. 2, 50 advocates the view of Bṛh. that the liability for the debts does not extend to the great-grandsons and that even the grandsons are responsible only for the principal shorn of interests. On the other hand, according to Asahāya on Nār. l.c. the great-grandsons too are liable for the debts and he illustrates this by an alleged case dealt with in a court of Pāṭaliputra in which the son and the grandson of the debtor quickly died one after another and the great-grandson tried in vain to escape the liability of payment.

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The narrower circle of Sapiṇḍa relations stretches up to the great-grandson and so here too, as in the law of inheritance, the religious motive connected with the funeral sacrifice plays a prominent part. Therefore, even the absence of assets does not free the sons from the liability for the debts of the father. On the other hand immoral promises of payment such as gambling debts and tavern scores of the father are not binding on the sons and as little binding are the debts of a father who was rendered unfit for legal business on account of some bodily or spiritual defect (Bṛh. 11,51; Katy. 10,53 f.¹ etc.). The head of the family is in general not liable for those debts which the sons, the wife or other members of the family have contracted for purposes other than those of the household. Only in the case of those professions in which the man can support himself only with the help of the wife, e. g. in the case of washermen, shepherds, actors and sailors, the debts of the wife are said to be always binding on the husband (Vi. 6,37 etc.). After the death of the husband the wife is responsible for those debts of his which she contracted together with him or which she has expressly recognised and she is also liable for her husband's debts if she inherits his property or receives from him a command of payment at the time of his death; in the absence of assets or sons the liability may fall also on him with whom the widow lives, inasmuch as he is to some extent the heir (Nār. 1,16,22).

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¹ Bandyopadhyaya. 437 ff. Tr.

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At the payment of a debt as well as at the time of giving back a deposit (§ 30) the same forms are to be observed as when launching on them (Vi. 6, 1). Therefore if it was contracted orally or with written documents before witnesses, the same witnesses must be present also when it is paid back (Vi. 6,24 ; Y. 2,94). If a written contract had been made, as was usually the case at least in later times, the creditor must give it back or tear it or give the debtor an acquittance ; part payments too must every time be noted down on the back of the bond of debt, or if it is not at hand, a special acquittance must be given for them (Vi. 6,25 f. ; Y. 2,93). If the creditor refuses to give acquittance for a sum which has been paid he will forfeit the rest of his dues, and moreover the amount which has been paid to him but for which he has given no acquittance begins to accumulate interests for the debtor as it had till then done for the creditor (Nār. 1,115). Accumulation of interest stops if the creditor does not accept the offered payment (out of greed, in order to get further interests, according to the commentators) ; yet according to Y. 2,44 this happens only when the debtor deposits the money with a disinterested party. Among several concurring demands, according to Kāty.¹, the oldest one is to be satisfied first ; exception however should be made in favour of the demands of a Brahman or a king which shall be satisfied before all others. The Brahmans appear to be favoured also in another way; after the death of a creditor of this caste the debtor shall pay back the debt not only to his descendants or near or more distant relations, but shall pay it to other Brahmans on failure of such relations and if Brahmans too cannot be found, it should be thrown into water (Nār. 1, 112 f.). About the recovery of debts see § 53.

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Nār. 1, 117 says that the guarantee (to the creditor) may be of two kinds : a surety and a pledge. Pledge of property and personal security appear to have been equally developed, yet however the law of pledges is dealt with more fully and plays the chief

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1. Bandyopadhyaya, 434. Tr.

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Aquittance must be given for part payments.

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Otherwise the rest of the debt is forfeited.

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Interest stops if creditor refuses to take money.

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Earlier debts paid first.

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Brahmans favoured.

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Sureties and pledges.

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part even at the present day. The pledge is called Ādhi "deposit" or Bandha, Bandhaka "binding, bond". Hypothecation is not mentioned in Ancient Indian Literature,¹ there is only pledge of property, all the same whether it consists of immovable or movable properties. Of the various kinds of pledges those which may be enjoyed (bhogya) and those that are to be preserved uninjured (gopya) (Nār. 1, 125 etc.) are most important. Pledged immovable properties which may be used, such as for instance, a house, a field, a fruit garden, appear as a rule actually to have been used; the income made out of it was the interest. Also male and female slaves, oxen, cows and other house-hold animals are mentioned as usable pledges.

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¹ P. N. Sen (Hindu Jurisprudence, p. 186) has shown that hypothecation was known at least in Bengal. Tr.

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The pledgee is responsible for the injury, loss and depreciation of a pledge excepting when vis major is the cause thereof and he forfeits the interests in the case of illegal handling of the pledged property which was to be preserved uninjured and is punishable if he maltreats a pledged slave; on the other hand the debtor has to replace a pledged property which has become valueless without there being any fault on the part of the creditor, and if he does not prefer it he has to pay off the debt.

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Different grades of the right of mortgage are naturally excluded, because a pledge is valid only when it is actually in the possession of the creditor.² For that reason only the first mortgage is valid in the case of repeated mortgages of the same property with different creditors and if it is mortgaged with various creditors at the same time the priority of the possessor or superior right is the determinative factor or the pledge is divided among the creditors. The debtor could any time demand the restoration of the mortgaged property on payment of the debt and the accumulated interests, which according to the rule mentioned above could not exceed the amount of the principal, for in principle "pledges cannot be prescribed." This principle is particularly applicable in the case of usable pledges which are accordingly to be given back to the debtor as soon as the redoubling of the debt takes place as the result of the accumulation of interests and the whole amount which is thus due is realised through usufruct. According to another and perhaps a later view even in the case of usable pledges either the forfeiture of the same or the cessation of usufruct after the expiry of a fixed period may be stipulated. Stipulations for forfeiture were of common practice, e. g. after a term of 2, 5 or 10 years, in the case of pledges to be preserved uninjured; even without such stipulations they would be forfeited as soon as the interests in arrear have reached the amount of the principal or after 20 years; yet in favour of the debtor a respite of 10 or 14 days is arranged or a court warrant is given for the sale of the pledged property and partly also the refunding of the excess arising out of this sale is arranged for. The creditor too may get satisfaction by reverting to enjoying the pledged property from merely holding it in custody. Gold and precious stones, garments and stuffs are particularly mentioned as properties of pledge which are merely to be held in custody, but also slaves, horses, copper utensils of cooking etc. could be pledged in this way. Such pledges could be kept in custody also by a pledge-keeper (*adhipāla*) instead of the creditor himself¹.

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² But see f.-n. 1. Tr.

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¹ For the original documents about the above see my ind. Schuldrecht l. c. 298--307.

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Sureties, called Pratibhū "representative" or Lagnaka "bail" can be held responsible not only for the payment of a debt (*dāna*), but also for appearance (*darśana* or *upasthāna*), for delivering the debtor's assets (*rnidravyārpaṇa*), for delivering a pledge (gṛhītabandhopasthāna) and for reliability (viśvāsa or pratyaya), i. e. for the good conduct of the debtor or for his capacity to pay. In a law-suit (vāde), either for the complainant or for the accused, a surety may stand for the performance of an ordeal (divya, śapatha), for assurance (abhaya), i. e. protection against a sudden injury, or for a written document (lekhye kṛte). The first five kinds of sureties may eventually be held responsible for the payment of the debt, in which however the creditor has to proceed with utmost mildness and must allow respite.

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