History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.290

v4.c63.290

Witnesses are divided by Nār. IV. 149 into two sorts; (1) those appointed (*kṛta*) by the parties and (2) those not appointed (*akṛta*); the first being of five kinds and the last of six kinds. The first five (acc. to Nār. IV. 150) are a subscribing witness (*likhita*), one who has been reminded (*smārita*) i. e. one who is called as a witness without there being a document and who is present at a transaction and is again and again reminded of it by a party to it in order that the transaction may be effectively proved thereafter (Kāt. 371 and 372 q. in Mit. on Yāj. II. 68), a casual witness i. e. one, who, while a transaction is being entered into, comes there by mere chance and is then asked to be a witness (*yadṛcchābhijña* or *yādṛcchika*, acc. to Bṛ.), a secret witness i. e. one who is made to listen to the speech of the debtor while concealed behind a wall or screen, an indirect (*uttara*)⁴⁹⁹ witness (i. e. one who learns from a witness who has seen or heard of a transaction when the latter is going to a distant country or is on the point of death). The six *akṛta* witnesses (acc. to Nār. IV. 151-152) are co-villagers (in disputes about boundaries), the chief judge, the king (before whom a suit was tried), one who is closely acquainted with the transaction of the parties (i. e. *kāryamadhyagata*, acc. to Bṛ.), one who is deputed by a party (for borrowing an ornament or for settling a transaction, called *dūtaka* by Bṛ.), members of the family (*kulya*) in disputes among other members of the family (as regards partition &c.). Bṛ. mentions twelve kinds of witnesses that are practically the same as the eleven of Nār. except one which he adds viz. *lekhita*⁵⁰⁰ (one whose name is caused to be written by a party in the presence of the witness when that party enters into some transaction in writing such as a loan with another). The only difference between 'likhita' and 'lekhita' seems to be that the first himself writes his own name as a witness on a document while the latter's name is written as a witness by one party in the presence of the other and of the witness. Bṛ. (S. B. E. vol. 33 p. 299 verses 4-15 q. by Aparārka pp. 666-667) defines at great length all the twelve and Kāt. also defines most of them, but these definitions are passed over as not very important. Viśvarūpa remarks that these nice distinctions among eleven kinds of witnesses are made only for the sake of exposition and for the benefit of simple people⁵⁰¹.