History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.712
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.712
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The different modes of the sources of ownership have already been referred to (H. of Dh. vol. II. pp. 130 ff) and will be referred to again under *dāyabhāga*. According to Nār. VII. 1 and Bṛ. (SBE vol. 33 p. 335 verse 2) when⁷⁸⁹ a person, who holds an open deposit, a sealed deposit, an article bailed for delivery to another, stolen property, an article borrowed for some festival, a pledge, or property lost by a stranger and found (by him), sells it in secret (or behind the back of the owner) it is to be considered as a sale by one who is not the rightful owner. Vyāsa has a similar verse. The word 'sells' is only illustrative and includes gifts and pledges. Similarly as most sales by one not the owner are clandestinely brought about, Bṛ. employs the words 'in secret' but even if the sale is effected openly the same consequences may follow. The same rules will apply to an article lost by the owner and found by a stranger. Kāt. (612) provides⁷⁹⁰ that a sale, gift, or pledge, made by one who is not the owner, should be rescinded (by the king or judge), Manu VIII. 199 and Nār. (q. by Sm. C. II. p. 213, V. P. p. 291) and others say the same thing. Yāj. II. 168, Nār. VII. 2 provide that the owner is entitled to recover his property from the person that purchases from one who is not the owner. If the buyer purchases an article not in the open market, then he is liable for punishment;
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if he purchases from one who could have no means of possessing the thing sold (such as a slave without the master's consent) or for a very inadequate price or at a very unusual hour (at midnight or the like) or from bad characters then he is to be punished as a thief (Yāj. II. 168, Viṣṇu Dh. S. V. 166, Nār. VII. 3, Manu VIII. 202, Bṛ. in SBE vol. 33 p. 336 verse 11). Such a sale is a fraudulent one. If the buyer purchases (through ignorance) in market overt from one who is not the owner, he incurs no blame (no punishment), but he may have to hand over the article to the real owner (Viṣṇu Dh. S. V 164-166).⁷⁹¹ The purchaser from one not the real owner can free himself by producing the vendor (called *mūla* in Manu VIII. 202, Bṛ. and Kāt.) and should not attempt to conceal from whom he came by the thing, otherwise he would be liable to be punished equally with the vendor as a thief (Nār. VII. 4). Bṛ. (SBE 33 p. 335 verse 3), Manu VIII. 201 and Yāj. II. 170 say that when the vendor has been produced by the vendee, then the latter is not to be proceeded against, but the vendor has to litigate with the real owner who has lost his property and when the vendor loses the suit he has to pay the price to the buyer and a fine to the king and the owner gets his property back.⁷⁹² If the vendor has gone abroad adequate time should be granted to the purchaser to produce him (Kāt. 615).
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The purchaser in order to escape blame (punishment) has to produce the vendor and if that cannot be done owing to the vendor's absence he has to prove that he purchased⁷⁹³ openly (Bṛ. in SBE 33 p. 335 v. 4, Manu VIII. 202, Kāt. 615, 618-619). If he cannot do any of these two, then the purchaser would be liable to pay the price to the real owner as claimed and a fine to the king. Manu VIII. 198 prescribes that one who sells without being the owner but being a member of the owner's family should be fined 600 paṇas, while a vendor unconnected with the real owner's family should be dealt with as a thief. The same rule applies to a vendor selling another's article through ignorance or mistake and one doing so with full knowledge. The person who has lost a chattel and claims it from the finder is described as *nāṣṭika*⁷⁹⁴ in Kauṭ. III. 16, Manu VIII. 202, Kāt. (614) and elsewhere, the word being derived from *naṣṭa* (what is lost). The idea is that openly purchasing an article in the presence of a number of people for an adequate price negatives fraudulent intent and leads to the inference of a purchase in good faith and such a purchaser even though he may have to part with the chattel to the real owner when the latter proves his title, incurs no blame and is entitled to recover from the vendor, if he has to surrender the article, the price paid by him.
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When a person claims a lost article as his he has first to prove his title and possession by evidence (such as that of his kinsmen or a document &c.) and that he had not sold or donated or abandoned it;⁷⁹⁵ after he has proved his title the purchaser is called upon to prove his purchase as honest by evidence i. e. by producing the vendor or by showing that he purchased openly and for adequate price (Kāt. 613, Yāj. II. 170). When this is done the purchaser escapes blame but has to surrender the article to the true owner. Kāt. (616) adds⁷⁹⁶ that in the case of 'asvāmī-vikraya' no other means of proof whether divine or human (except the evidence of witnesses such as kinsmen) is declared to be proper. Acc. to the V. P. p. 293 other evidence and even ordeals may be admissible in sale without ownership, but the Sm. C. p. 216 and the Madanaratna say that on account of the express words of Kāt. this is not possible. If the owner who alleges the loss of an article fails to prove his title and prior possession he has to pay a fine to the king equal to ⅕th of the price of the article. Kāt. (620) and Kauṭ. (III. 16) state that on failure to prove his title the person claiming⁷⁹⁷ the article as his should be fined as a thief, in order to deter (others) from taking undue advantage (i. e. preferring false claims). Kauṭ.⁷⁹⁸ III. 16 and Yāj. II.
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169 provide that when the real owner finds his lost article in the hands of a stranger he should get him apprehended by the royal officers (such as *chauroddharaṇika*, acc. to Mit.), but that if the owner thinks that much time will be lost or distance will have to be traversed (for going to officers) he should himself seize the person and bring him before the court. The Mit. explains that the buyer should have the seller arrested and, if the seller is dead or gone abroad, that he should hand over the article to the real owner. Where a purchase has been made in the midst of a row of traders to the knowledge of the king's officers, but from a vendor whose habitation was unknown or where (after the purchase) the vendor dies, the real owner (of the thing sold by one not the owner) will recover his own property after paying half the price to the purchaser, since the rule of justice in such a case so requires, because to purchase from one (whose habitation is) not known is a fault (in the purchaser) and not taking proper care (of one's goods) is also a fault in the real owner (Bṛ. in S. B. E. vol. 33 pp. 335-36 verses 7-9 or Kāt. 621-623)⁷⁹⁹. Marīci (q. by Aparārka p. 775, Sm. C. II. p. 217) has similar provisions. Bṛ. (S. B. E. vol. 33 p. 335 verse⁸⁰⁰ 6) provides that in a suit where there is no evidence the king shall take into consideration the character of the litigants and give a decision according as the credibility of the parties is equal, greater or less.