Studies in Ancient Hindu Polity (Based on the Arthashastra of Kautilya), Vol. I c14.s1.24

c14.s1.24

Yājñavalkya, II, 91.—“But every document which is in the handwriting of the party himself is considered as sufficient evidence even without witnesses, unless obtained by force or fraud.” For the passage of Manu on this point, see *supra*. For references to documents in contracts, see the passage (Y) quoted above; see also the last sentence, p. 176, पत्रादानम्, which runs thus: वादिप्रतिभियोर्वा दुःश्रुतं दुर्लिखितं प्रेताभिनिवेशं वा समीक्ष्य साक्षिप्रत्ययमेव स्यात् । the former could adduce no witnesses.¹ Other instances of this exception will be furnished by the class of contracts called तिरोहित, to which we shall have occasion to turn presently. The presence of witnesses was repugnant to the object of a तिरोहित contract; it was entered into in secret. A document may sometimes be used in such a case in lieu of witnesses, but sometimes there may be neither a document nor any witnesses.² Under such circumstances a dispute was decided by examination of the parties themselves, by a reference to any custom that might govern the transaction, by taking the opinion of experts (प्राश्निकाः), by utilizing other resources that the court commanded, e.g. the information given by the "agents" attached to the law courts, and by looking to some form essential to the transaction, e.g. the seal in the case of a sealed deposit. So we see that, as a general rule, openness and publicity were required for the formation of a contract, which had to be entered into in the presence of witnesses. The absence of witnesses could be made up for by an instrument or otherwise.¹