History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.317

v4.c63.317

The important question is how much has to be proved by the party calling witnesses. Yāj. II. 79 (=Viṣṇu Dh. S. VIII. 38), Nār. II. 27 and Bṛ. (q. by Sm. C. II. 91) state the general rule that that party whose averments are supported in their entirety as true by the witnesses becomes successful, while that litigant whose claim is declared by them to be false certainly loses⁵²¹. Nār. IV. 232 and 234, Kāt. 396, 398 lay down⁵²² the rule that in civil disputes that are of a non-urgent nature (like recovery of debts), if witnesses depose to more or less (than what is averred in the plaint), then the claim is not established in its entirety; where the witnesses depose to more or less (than the claim affirmed by the party) the deposition of the witnesses should be considered as not taken down or it should be omitted (from consideration)⁵²³; the witnesses in such a case are not liable to fine; they may deserve to be fined if they do not depose (to what they know). Similarly Nār. IV. 233 and Kāt.⁵²⁴ 399 say that where the depositions of witnesses are in conflict as to the place, the time, the property, the amount, the colour, the species (or caste), the form (or shape), the age (as stated in the pleading of a party), the depositions are to be regarded as good as not given at all. The rule amounts to this that any discrepancy between the essential details or particulars of a claim made in the plaint (such as the time, place, number &c.) and the case made out in the depositions as to any of these essential particulars will have the same consequence as tendering no oral evidence. This rule was not followed to the letter and besides other means of proof could be resorted to, as stated by the Mit., the Vivādacandra and others⁵²⁵. Kauṭ. III. 11⁵²⁶ states that when the witnesses depose to less than what is averred in the plaint, the plaintiff has to pay a fine (of a fifth part) on the excess and when they depose to more than the claim, the excess (held proved on the depositions) may be taken by the king.