History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.603

v4.c63.603

Kāt. (522) requires that an ādhi becomes valid when such particulars as the boundaries of the field or house and the village (in which it is situated) are specified⁷¹⁴. Kāt. (518) further provides that a writing of pledge or sale or gift is superior to a similar transaction made in the presence of witnesses only. If the same field or other thing is mortgaged or pledged to two persons separately, Viṣṇu Dh. S. V. 185⁷¹⁵ and Bṛ. (S. B. E. 33 p. 326 verse 34) prescribe⁷¹⁶ that the one who got possession first (without force) is entitled to preference. This shows that under ancient Hindu Law possession was nine points of law and that hypothecation without delivery of possession was known to Kāt. and other smṛti writers, even if earlier smṛtis did not recognise an hypothecation without possession. Yāj. II. 60 and Nār. IV. 139 emphatically assert that a pledge or mortgage becomes perfect or effective only if there is enjoyment and not otherwise. This is to be taken along with Yāj. II. 23 and so the first in time shall prevail only if the first is accompanied with possession. If a sale or mortgage be made before witnesses to one man and in writing to another, the latter prevails over the former⁷¹⁷. If a debtor were to pledge or mortgage the same thing to another after pledging it to one and without redeeming the first debt, Viṣṇu Dh. S. (V. 181-182) prescribed⁷¹⁸ the drastic measure of corporal punishment (whipping or imprisonment) if the land mortgaged was a *gocarman* or more in extent or a fine of 16 *suvarṇas* if it was less. Kāt. (517) in similar circumstances made the debtor liable to the fine imposed on a thief. Kāt. (519-521 q. in Sm. C. II. pp. 144-145 and V. P. pp. 240-241) states that in a competition between a document of pledge which does not give particulars of the thing pledged or which refers to a thing not existing at the time and a document in which the thing pledged is described with particulars or in which the thing existed at the time the deed was executed, the latter is entitled to preference; similarly the pledge of a thing specifically described is superior to a prior pledge of all the debtor's property mentioned in general terms.