History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.586
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.586
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*Ādhi*⁷⁰¹ means pledge of a movable or mortgage of immovable property. Nār. IV. 117 remarks⁷⁰² that in lending money an *ādhi* and surety are the two sources that inspire confidence (in the creditor that his money will be safe) and a document and witnesses are the two modes of proof that will establish (the existence of a debt). An *ādhi* is so called because the creditor is authorised to wield power over it or it is placed within his power (Nār. IV. 124 and Mit. on Yāj. II. 58)⁷⁰³. The word ādhi occurs in Āp. Dh. S. I. 6. 18. 20⁷⁰⁴ (which includes among those who are unfit to be invited at a śrāddha 'one who subsists on ādhi'). Gaut. XII. 29 also refers to *ādhi*. Kauṭ. (III. 12) briefly deals with *ādhi* and after stating some rules extends the principles of *upanidhi* (deposit) and debt to it. Manu VIII. 165 employs the word 'ādhamana' in the sense of 'mortgage'. According to Bṛ.⁷⁰⁵ (S. B. E. vol. 33 p. 323 verse 17) an ādhi is of four kinds viz. of movable property, of immovable property, *gopya* (to be kept in custody of the pledgee only), *bhogya* (to be enjoyed). Nār. IV. 124 first divides ādhi into two sorts, viz. one that is to be redeemed within a certain time fixed (by agreement at the time of contracting the debt) or to be retained till the debt is paid off and Nār. IV. 125 again subdivides each of these two into *gopya* and *bhogya*. This latter division was known to Gaut. XII. 32, Manu VIII. 143, Yāj. II. 59, Kāt. (576).
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The subdivisions of ādhi are made from several points of view viz. the nature of the property, the form of the pledge, the mention or non-mention of a period and the evidence to establish it. The Mit. on Yāj. II. 58 explains⁷⁰⁶ that the first kind of ādhi mentioned in Nār. IV. 124 contains the conditions that the money will be repaid at a fixed time and that if the money be not so paid at the time fixed the thing pledged or mortgaged will belong to the creditor. Yāj. II. 58 sets out three provisions viz. (1) when a time is fixed for payment, the thing pledged or mortgaged is lost to the debtor if the time fixed is allowed to pass without there being any repayment (whether it be an ādhi that is to be merely kept or whether it is one to be enjoyed); (2) but if no time be fixed the thing given as security is not lost to the debtor at all, when it is an ādhi that is to be enjoyed; (3) if no time is fixed and the ādhi is only to be kept (*gopya*) then it is lost to the debtor only if it is not redeemed even when the debt has grown to double of the principal by non-payment of the interest agreed upon. There is a period of fourteen days' grace after this, as stated by Bṛ. (S. B. E.⁷⁰⁷ vol. 33 p.
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324, verses 27-28) that when the principal has been doubled or the stipulated period in the case of a pledge delivered for a certain time only has expired, the creditor becomes the owner of the pledge, after waiting for a fortnight during which the debtor may repay the debt and redeem his property. Gaut. XII. 29, Manu VIII. 143, Yāj. II. 58, Viṣṇu Dh. S. VI. 5 provide that an ādhi which is mortgaged with the condition that the fruit or profits are to be enjoyed bears no interest nor can the creditor, even after keeping such an ādhi for a long time, make a gift of it or sell it. Medhātithi on Manu VII. 143 holds that a mortgagee with possession who is to enjoy the produce cannot, by virtue of the last quarter of Manu VIII. 143, make a sub-mortgage (called *anvādhi*). Kullūka on⁷⁰⁸ the other hand says that it is common practice in all countries for a mortgagee to execute a sub-mortgage of land and the like and that Manu VIII. 143 does not forbid it. Prajāpati⁷⁰⁹ (q. by Par. M. III. p. 242) defines a deed of sub-mortgage: 'if the creditor pledges to another the thing already pledged to him for the same amount (for which it was pledged to him) he should pass a fresh deed of pledge (or mortgage) and should hand over the former deed to his own creditor.' It appears that sub-mortgages came to be recognized rather late. Bharadvāja states that if a sub-mortgage be effected without the mortgagor's consent, the mortgagee would lose his money.