History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.216
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.216
- Language
- English
v4.c63.216.1
Yāj. II. 91, Nār. IV. 146 and Kāt. 312 (q. by Aparārka p. 687) prescribe that when a document is in another country or when it is illegibly written, when it is lost or its letters have become indistinct (by lapse of time or other causes) or it has been stolen or is crushed or burnt or shattered into pieces, another document may be caused to be written (if both parties agree): but if they do not agree and the contents have to be proved or if the executant denies his signature, then Nār. IV. 142 and Kāt. (282 q. by Sm. C. II. p. 63) say that time may be given to bring it from the foreign country or the contents may be proved by the evidence of the attesting witnesses or of the scribe or of those that have seen it. This shows that the smṛti law required the production of the document itself as primary evidence, but allowed secondary evidence only in exceptional cases.⁴⁴² If a document belonging to one man is produced by another the latter has to explain his custody of it⁴⁴³ (Vyāsa q. by Aparārka p. 690, Sm. C. II. 66). Kāt. (308 q. by Sm. C. II. p. 65) says⁴⁴⁴ that just as the reflection of a person or thing made in a mirror is seen as if it were real though it is unreal, so clever people can fabricate documents resembling (the genuine writing of a person). Vyāsa (in Aparārka p. 688, Sm. C. II. 65) and Bṛ. (S. B. E. vol. 33 p. 307 vv.
v4.c63.216.2
20-21) say the same thing and add that documents have to be carefully scrutinized and that no certain conclusion can be established by documents alone (in every case), that women, minors and illiterate persons are deceived even by their relatives by the fabrication of documents bearing the names of these (women and others) and that this has to be investigated with skill. When there is a doubt about the genuineness of a document, it can be established by comparison with other documents admitted to be written or signed by the same person, by ratiocination, by the probability of the two parties being together at the time of the transaction, by citing the attesting witnesses,⁴⁴⁵ by the peculiarities or flourishes in writing certain letters or making certain signs (in the writing questioned and in other admitted writings), the previous transactions between the parties (or their subsequent conduct), and the source of the acquisition of the subject matter in dispute (Yāj. II. 92, Viṣṇu Dh. S. VII. 12, Nār. IV. 143-144, Kāt. 283 q. in Mit. on Yāj. II. 92). Viṣṇu Dh. S. (VII. 13) and Kāt.⁴⁴⁶ 285-286 (q. by Aparārka pp. 689-690) prescribe that if the debtor, creditor, witnesses or the scribe be dead the authenticity of the document has to be ascertained by (a comparison of the signatures on the disputed document) with other specimens of their handwriting or signatures or other documents executed by the debtor. Kāt. 287 (q. by Aparāka p. 689, Sm. C. II. p. 64 and Par. M. III. p.
v4.c63.216.3
134) states the striking⁴⁴⁷ rule that when a document bears the royal seal, that document is presumed to be authentic, even though all the three (viz. the debtor, the witnesses and the scribe) are dead. This shows that documents bearing the king's seal or that of royal officers were regarded as prima facie genuine and this rule is analogous to the provisions in sec. 79 of the Indian Evidence Act and sections 59-60 of the Indian Registration Act. That even copperplate grants were sometimes forged is clear from the reference in the Madhuban plate of Emperor Harṣa (E. I. VII. p. 155, 158), and from the Tārāchaṇḍī Rock Inscription (in Bihar) of Mahānāyaka Pratāpadhavaladeva (in E. I. XX. Appendix No. 340) of *saṁvat* 1225 which declares that a certain copperplate purporting to be issued by Vijayacandra of Kanoj was forged. Vide Fleet in I. A. vol. 30 pp. 201–223 for many forged grants. Verses (variously attributed to Kāt. or Bṛhaspati by the digests) state that when a loan (recorded in a document) has not been expressly claimed by the creditor able to claim from a debtor who is able to pay off and who is at hand, the document loses its validity because a suspicion arises that the debt has been paid off and that a document executed more than thirty years before which has never been seen (by any body) nor read out (by the creditor to any body) does not attain validity even though the witnesses on it are living. Nār. IV. 141 is very similar to this last. Kāt. 298–299, 301 (q.
v4.c63.216.4
by Par. M. III. 136, Mit. on Yāj. II. 24, Aparārka p. 690–691) prescribe that if no objection is raised for twenty years as regards a patent fault in a document of debt or pledge or of the settlement of boundaries, then the document ceases to be voidable. Kāt. 275 and Bṛ. (S. B. E. vol. 33 p. 302 v. 25) both quoted by Aparārka p. 671 and V. P. p. 122 require that the latent defects in documents or witnesses must be declared (pointed out) by the disputant at the (proper) time (i. e. when they are produced), while patent defects may be considered by the *sabhyas* at the time (of the consideration of the evidence) by reference to the rules of the śāstra. Yāj. II 93–94, Viṣṇu Dh. S. VI. 25–26⁴⁴⁸ prescribe that when a debtor pays part of a debt, the debtor should write on the back of the document how much he paid or the creditor may hand over to the debtor a writing of receipt signed or written by himself, particularly when the original document is not at hand, and when the whole debt is paid or the contract is fully performed the creditor should tear off the document or should execute another document in order to make clear the fact of satisfaction.