Pramāṇa · Search · About · API

Administrative System of the Marathas c19: Appendix E

Administrative System of the Marathas c19

Language
English

Contents

Appendix E

c19.1

*Elphinstone's Estimate to the Peshawa's Revenue.*

c19.2

Poona, December, 1815.

c19.3

SIR,

c19.4

I have the honor to enclose the Details of the Paishwas Revenue, of which I transmitted an Abstract, in my Despatch to His Excellency the Governor-General. I did not forward these Papers at that Time as they are of no General Interest, I send them now because occasions may arrise (such as exchanges &ca.) when it would be convenient to refer to them and it is therefore desirable to have them on Record. In the same view I enclose a statement of the lands assigned to Holcar. The date is old and the amount of the Revenue must have altered since then. Holcar may also have much aquisitions in the Interval that has past but this Document contains the possessions of his Family seventeen years ago and the changes in that Period may be ascertained by a Reference to recent Transactions.

c19.5

I have the honor to be SIR, Your most obedient humble servant,

c19.6

M, ELPHINSTONE.

c19.7

To J. ADAM, ESQ., &c. &c. &c.

c19.9

*Abstract of the Paishwah's Revenue.*

c19.10

| Praunt Kokun | ... | 25,68,594 |
| Praunt Carnatic including Beejapoor | ... | 19,52.183 |
| Praunt Candeish including Bauglana and Berar | ... | 10,05,344 |
| Praunt Poona, Joonair, Nuggur & Painair | ... | 7,28,118 |
| Praunt Gungterree | ... | 5,65,769 |
| Praunt Wye Sattara | ... | 2,99,142 |
| Praunt Swadeish, Ballaghaut | ... | 4,66,023 |
| Praunt Gazerat | ... | 9,76,362 |
| Praunt Serole | ... | 0,03,866 |
| Country North of tho Nurbudda | ... | 0,17,843 |
| Mawul | ... | 1,63,927 |

c19.11

Praunt Kurhar ... ... 7,34,322 Batta of 8 P. Ct. upon the Khasgee 1,90,240 Total ... 96,71,735

c19.12

To the above is to be added the revenues of Ahmedabad and of the Lands resumed from Bastin.

c19.14

CHAPTER VII

1. Primitive Simplicity of the Maratha System

c19.s1.1

The system of administration of justice was simple and suited to the temper of the time. Codified law there was none and procedure was uncertain and informal. For one, the judiciary depended upon the old Sanskrit treatises on law like Mitakshara and Manu's Code, for the other, they had to depend upon old customs. And as those old customs prescribed, among other forms, trial by ordeal, the Maratha judges allowed ordeal by fire and water as well as appeal to divine intervention in the form of an oath taken in a sacred temple. But the Chhatrapati Maharajas and the Peshwas after them acted more like the patriarchs of old than modern judges. What law there was, was not strictly enforced in civil suits. Legal exactitude was not their ideal. Amicable settlement was encouraged, and an attempt was always made to give a suitor every facility for proving his case. Sometimes consideration was made for a defeated party, to ensure good feeling between the parties in future. Thus in the suit of Maloji bin Shahaji Bhanga *vs.* Hiroji bin Narsoji Bhanga about the proprietary right of a Patilki watan although the latter had failed to substantiate his claim, the *Panch* directed Maloji to give Hiroji a site to build a house on and 30 bighas of land.

c19.s1.2

"A piece of land about 30 cubits in length and about 15 cubits in breadth in the inhabited portion of the aforesaid village and the Patilki right of 30 bighas of the superior, ordinary and inferior classes out of the cultivable land of the village have been given to Hiroji, son of Narsoji Bhanga by the assembled *got*."¹ (*Got*—caste-men.

c19.s1.3

¹ P. D., Vol. I, pp. 179-181.

2. Pratap Sinha's Yadi

c19.s2.1

The old customs about procedure were compiled and arranged in a *yadi* by Pratap Sinha Maharaj, Chhatrapati of Satara. Pratap Sinha reigned from 1808-1839 A.D. and the fall of the Peshwas took place in the year 1818. His reign, therefore, coincided with the early period of English administration in the Bombay Presidency. But the rules and regulations drawn up by him in his *yadi* were based upon the old customs of the land, and give us a clear idea of the policy by which the old Maratha rulers were guided in the administration of justice. Says Chhatrapati Pratap Sinha in the *Nyaya*- dhish *Prakaran* of his yadi—"The good old rule of this realm has been to make amicable settlement of all disputes through the proper exertion of the neighbours and to call a *Pancha-yet* only when there is no other remedy."² He goes on to say that this excellent custom should be encouraged and the Patils, Mamledars and Shete Mahajans (in towns and market places) should try to induce the parties, if they came to them, to settle their dispute by arbitration. Even serious quarrels, beyond the jurisdiction of Patils and Shete Mahajans and Panchayets appointed by them, says the Raja, it would be well if settled through the arbitration of neighbours.³ Intent on the welfare of his subjects, and perhaps impelled by the good old custom, the Raja says that in case of settlement by arbitration the parties would be exempted from the payment of *Harki*, which they would have to pay, if the case was referred to Royal Courts or Royal officers. In case the parties failed to settle their disputes amicably, they should go to an arbitrator and the Raja assures us that such an arbitrator need not fear Royal displeasure for his laudable efforts.⁴ 3. *The Separation of the Executive and the Judiciary unknown :*

c19.s2.2

² B. I. S. M., Tritiya Sammelan Vritta, pp. 51-52. ³ Ibid. ⁴ The original document has been published in the Tritiya Sammelan Vritta of the Bharat Itihas Shanhodhak Mandal by Mr. Bhaskar Vaman Bhat.

c19.s2.3

When such efforts for amicable settlement or settlement by arbitration failed, the parties had recourse to the regular instruments of justice. The judicial officer in the village was the Patil as usual, above him the Mamlatdar and the Sarsubhedar and above all the Peshwa or his minister as the representative of the theoretical head of the state, the Raja of Satara, who was like the King of England, the fountain of justice and honour. In towns, learned judges, well-versed in the Shastras, were appointed for judicial duties and were called Nyayadhish. Thus we see the Maratha statesmen were not acquainted with the theory of the separation of the Executive, the Legislative, and the Judiciary. The Peshwa and his minister, the Sarsubhedar the Mamlatdar and the Patil in the village exercised all these widely different functions. The Nyayadhish was a Judiciary pure and simple.

c19.s2.4

4. *Panchayet :*

c19.s2.5

The great instrument of administration of civil justice was the Panchayet. Pratap Sinha Maharaja says that for cases of minor importance the Patil in the village and the Shete Mahajan in the towns and market-places could appoint Panchayets. The parties on such occasions had to sign a *Rajinama* or agreement to abide by the decision, and the Panchayet was then to proceed with its enquiry, draw up a *saransh* or summary of the case and pass its judgment. The judgment had to be confirmed by the Mamlatdar. But if it was discovered that the Panchayet was corrupt or prejudiced against a party, the case was to be reported to the Mamlatdar, and if the Mamlatdar after proper enquiry found the Patil's report correct, the case was to be sent to the Sarkar. If the Patil refused to appoint a Panchayet or to dispose of the case in a legal manner, or if the parties rejected a Panchayet of their own village, the case was to be referred to the Mamlatdar; it would then be the Mamlatdar's duty to appoint a Panchayet with the Patil's cognizance or to assemble a Panchayet at a place other than the village of the disputants. In serious cases beyond the jurisdiction of the Patil or officers of his rank, the Mamlatdar was to appoint in the first instance an arbitrator with the consent of the parties. Failing this measure a Panchayet in the usual manner had to be appointed and the usual *Rajinama* had to be signed. The decision of the Panchayet was generally confirmed and upheld by the Government unless there was a charge of corruption against the members of the Panch.

5. Panchayet and Jury

c19.s3.1

The trial by Panchayet was in many respects like the trial by jury. The members of the Panch, it may be noted, were not paid out of the government treasury like the amateur judges of ancient Athens, and it is not certain whether they got any allowance for their trouble. Elphinstone says that they sometimes got some reward from the parties if the case was a protracted one. But Pratap Sinha strictly forbids any such gratification, and in theory at least it seems such private presents were not permitted. The Chhatrapati threatens to punish both the giver and the taker of bribe even if the former happened to be the party in the right.⁵

c19.s3.2

⁵ B. I. S. M., Tritiya Sammelan Vritta, p. 53.

c19.s3.3

But the Panchayet, was not exactly like the modern jury. The modern jury is presided over by a judge, but the Panchayet was not always presided over by a government officer, and when a Panchayet from the disputants' village was chosen (as was generally done), the members were bound to be more or less acquainted with the facts of the case and came to take their judicial seat with more or less bias. Moreover the parties were sometimes allowed to nominate the members of the Panchayet, each party naturally nominating its own advocates.

c19.s3.4

In modern times, although the parties cannot nominate the jury, they can considerably influence the empanelment by exercising the right of challenging a juryman. As the attendance of the members of a Panch depended simply upon their sense of duty and dread of public opinion, it was bound to be more or less irregular. And when they were nominated by the parties perhaps they sometimes acted more like pleaders than judges. They were also hampered by the absence of any authority on their part to enforce their decision. Their order unless vetoed by the government was enforced by the Mamlatdar who also placed at their disposal a peon for summoning the defendant and witnesses to their presence.

c19.s3.5

6. *Decision, in the absence of a party, not binding :*

c19.s3.6

It is noteworthy that a decision arrived at in the absence of either of the parties was not deemed legally valid and the absent party could afterwards appeal against it and have it quashed. But very severe pressure was sometimes put upon the relatives of the absentee to make him appear in the court.

c19.s3.7

"After that, hard times ensued and to earn my living I left my daughter and mother in the village and went in search of some service. Then Valimbe went to Ramchandra Pandit and had my mother arrested. My mother was there put to great trouble for four months and was then made to sign an agreement that she would produce her son in court within three months" (Statement of Shamji Ganghadhar Adkule in Shamji Ganghadhar and Gopal Tukdev Adkule *vs.* Bakdev and Gopal Ganghadhar Valimbe).a A man of rank could send his Karkun to represent him.

c19.s3.8

The defeated party had always to sign a document called *Yejitkhat* by which he renounced all claims to the property in question in favour of his opponent, and the winner had to pay a *Sherni* or *Harki* generally amounting to twenty-five per cent. of the value of the disputed property or watan. But, as in assessment of revenue, consideration was made for his pecuniary condition and sometimes he was exempted from payment altogether and often a reduction adequate to his means was made. The Harki of twenty-five per cent. even should not be regarded as excessive, as the suitors in the Maratha courts were not required to pay any court-fee, and the services of professional lawyers were both unknown and unnecessary.

c19.s3.9

7. *Appeals:*

c19.s3.10

An appeal against the decision of the Panchayat could be made only on the plea of corruption, but if the appellant failed to substantiate his charge he had to pay a fine or *Gunhagari*, and as his co-villagers generally sat on the Panchayat the appellant ran the risk of suffering in the public opinion. The Gunhagari was usually fixed according to the means of the appellant and it may also be noted here that both in appeals as well as in original suits parties had to give security for abiding by the decision of the court.

c19.s3.11

a Watan Patren Nivada Patren, p. 3.

c19.s3.12

For hearing appeal cases a fresh Panchayat could be appointed or the Peshwa's minister or the Mamlatdar (as the case might be) might decide the case without a Panchayat. Original cases might also be disposed of in a similar method. But as Elphinstone points out "though it rested with him (the Government officer) to decide whether or not the case required a Panchayat, yet it was reckoned gross injustice to refuse one on a question at all doubtful, and it was always reckoned a sufficient ground for ordering a new investigation when there had been no Panchayat."⁷ This popularity of Panchayets clearly proves that they were not generally open to corruption; although Elphinstone thinks that "the Panchayets themselves were open to corruption and to partiality." The Panchayets were popularly called "*Panch-Parmeshwar*," and the members of the Panch in many documents are addressed by the parties as their parents (माय बाप). The people of Maharashtra would not have regarded the voice of the Panch as the voice of God, unless it fully deserved their confidence.

c19.s3.13

⁷ Elphinstone's Report, p. 58.

c19.s3.14

8. Members of the Panch :

c19.s3.15

Before we proceed further we may take note of the status of the men who were called upon to serve on the Panch. The Panchayat called to decide the suit of Bhanga vs. Bhanga already referred to, consisted of the Deshmukh, Deshpande and the gots (got literally means a caste as considered collectively, or relations and kindreds considered collectively). Hence it was a trial by peers. Elphinstone says that in deciding boundary questions the Panchayat was constituted of Patils, Deshmukh and Deshpande, assisted by the Mahar. We know from the reports of other cases that in suits about watans, the Zamindars of neighbouring Parganas as well as the Patils of the adjoining villages were called upon to serve on the Panchayat. In fact these rustic judges were expected to be well acquainted with the unwritten customary law of the country. In a document published in Sanads and Letters of Rao Bahadur Ganesh Chimnaji Wad (edited by P. V. Mawjee and D. B. Parasnis) we find mention of a Majalasi (a council) consisting of Rajsabha and Brahmansabha appointed to hear an appeal case. The members of the Majalasi are described as people who have property (vritti) and who are directly or indirectly acquainted with the customary law of property. Consonant with this principle a dispute relating to the right of priesthood (Appana Bhat vs. Shripat Bhat) was referred to the Brahman community of Karhad for settlement* and the witnesses summoned were Joshis or fellow priests.

c19.s3.16

9. Government sanction necessary for a Panch:

c19.s3.17

A Panchayet, however qualified, could not legally proceed to perform judicial duties unless properly authorised by the government, but such irregularities were sometimes overlooked by the Peshwas in consideration of the motive of the Panchayet. A case in illustration may be quoted here:

c19.s3.18

"A dispute between Pilaji bin Atmaji Ambare, and Sambhaji bin Krishnaji Ambare, in regard to the Khoti of Chirani in Tarf Khed of Taluka Suvarnadurga was without authority decided with the aid of a Panch by Ragho Vishwanath Ganpule, a Karkun attached to the temple of Shri Bhargavaram, and a document bearing the seal of the deity was issued by him. His brother was therefore taken to the Subha and was called upon to account for Ragho's conduct. The matter having reached the Peshwa, a pardon was given to Ragho, and his brother was ordered to be released."⁹ The decision by this informal Panchayat was also ordered to be revised.

c19.s3.19

∗ P. D., Vol. VII, p. 143.

c19.s3.20

⁹ P. D., Vol. VII, p. 145. Mr. Bapu Purushottam Joshi's summary.

c19.s3.21

10. Evidence:

c19.s3.22

In civil disputes the parties were required to produce documentary as well as oral evidence, according to the nature of the case. They could however demand a decision by ordeal, of which various forms were in practice.

c19.s3.23

Let us see who the witnesses generally called upon to give oral evidence were, and before whom an ordeal, if resorted to, was undergone. These were generally the village officers, the *Pandhar* or the villagers and the *gots* or caste people, men well-versed in the history and traditions of the village or supposed to be so. From the evidence of old people handed down to us through the carefully recorded summaries of civil suits, we learn that the past history of the village and its old traditions were orally transmitted from generation to generation. Of the *Pandhars* the most important witnesses were the *balutas* who it seems, were fairly well acquainted with the traditional history of the village and its watan-holders.

c19.s3.24

That their evidence had very great weight and was considered essentially necessary will be found at a glance at the list of witnesses still preserved for us in the old records. Here we shall give three lists only. In a dispute (1749-50)¹⁰ regarding the Joshi and Kulkarni watans of Jalgaon in Pargana Supa and Jalgaon in Tarf Karhepathar in Prant Poona, Dado Shivdev, the defendant, signed a Rajinama, or agreement to abide by the decision (literally evidence) of the Pandhar of the villages in question.

c19.s3.25

¹⁰ P. D., Vol. I, pp. 172-177.

c19.s3.26

The names of the witnesses summoned are as follows:

c19.s3.27

1. Sultanji bin Duryaji Patil.
2. Limbaji bin Mankoji Patil.
3. Subhanji bin Bapoji Patil.
4. Shetyaji bin Rayaji Patil.
5. Piraji bin Santaji Jadhava Chaugula.

c19.s3.28

Balutas:

c19.s3.29

1. Babu bin Mankoji Sutar (Carpenter).
2. Suryaji bin Udaji Lohar (Blacksmith).
3. Subhanji bin Navji Kumbhar(Potter).
4. Udaji bin Mankoji Chambhar (Shoemaker).
5. Subhanji bin Jivaji Gurab (attendant of village temple).
6. Vaghoji bin Limbaji Koli (fisherman and carrier of water).

c19.s3.30

7. Malharji bin Raju Nhavi (Barber).
8. Maniknak bin Rajnak (Mahar).
9. Yesnak bin Nimbnak (Mahar).
10. Sambnak bin Ajnak Mang (Drummer).

c19.s3.31

In a dispute about the Patilki watan of Wadgaon Budruk ¹¹ (1741-42) separate statements were made by different groups of Pandhars, and their names are quoted below in groups as in the document:

c19.s3.32

¹¹ P. D., Vol. I, pp. 159-166.

Group 1

c19.s3.t1.1

1. Bud Mali (Gardener).
2. Shivji bin Kondji Nhavi (Barber).
3. Bajaji bin Badjoji Parit (Washerman).
4. Raynak bin Saynak (Mahar).
5. Hasa bin Chandnak (Mahar).

Group 2

c19.s3.t2.1

1. Nimbaji bin Janoji Sutar (Carpenter).
2. Badja bin Bahira Chambhar (Shoe-maker).

Group 3

c19.s3.t3.1

Sukha Mali bin Sant Mali aged 75 formed a group by himself and seems to have been better informed than the preceding witnesses.

Group 4

c19.s3.t4.1

Patils of neighbouring villages:
1. Kavji bin Malji Patil (Ambegaon Budruk).

c19.s3.t4.2

2. Rakmaji bin Malji Mate Patil (Khadak-basle).
3. Hemaji Patil Pola (Dhayti).
4. Yesji bin Gopji Patil Borate (Barje).
5. Yesji bin Yelboji Patil (Narhe).
6. Amai Borati Patlin (Hingne Budruk).

c19.s3.t4.3

GROUP 5.

c19.s3.t4.4

1. Hasa Mahar.
2. Lingnak bin Padamnak (Mahar as the name shows).
3. Raya Mahar.
4. Taba Mahar.

c19.s3.t4.5

GROUP 6.

c19.s3.t4.6

1. Moro Narhar Kulkarni.
2. Har Mali bin Mant Mali.
3. Sant Mali bin Raj Mali.
4. Shivmabla bin Raumabla.
5. Daj Varta.
6. Raya bin Ramnak.
7. Tahanak bin Santnak.

c19.s3.t4.7

The difference in their statements is explained by the fact that they were not equally well informed about the past history of the village watans.

c19.s3.t4.8

We get our third list from a case, Shivaji son of Tanhaji and others vs. Satwaji about the Loharki and Sutarki watans of Khodad in Tarf Narayangaon.¹² In this case also the parties signed a Rajinama to abide by the evidence of the Pandhar, and security as usual was taken from them. The Pandhars summoned were then taken singly and questioned about the past history of the watan after *bel bhandar* (analogous to copper and *tulsi*, तामा तुळसी of Bengal) had been given to them. Here also we find the witnesses divided into two groups according to the fulness or scantiness of their information; and a glance at this list will show how important the evidence of the balutas was in these disputes about watans, and here we find the age of the witnesses given against their names.

c19.s3.t4.9

¹² P. D., Vol. VII, pp. 133-139. The first six of group 1 were Patils,

Group 1

c19.s3.t5.1

| | | Age |
| 1. | Khandoji valad Subhanji Gaikwad | 45 |
| 2. | Bahirji valad Ranoji Kuchila ... | 34 |
| 3. | Ramji valad Padaji Kharmala ... | 60 |
| 4. | Kachu valad Khandoji Gaikwad ... | 35 |
| 5. | Mahadaji valad Harji Yeranda ... | 50 |
| 6. | Gondji valad Ranoji Raut ... | 55 |
| 7. | Nimbaji valad Yesaji Kumbhar ... | 60 |
| 8. | Malharji valad Umaji Koli ... | 35 |
| 9. | Hari valad Gangaji Dabra ... | 60 |
| 10. | Lokha valad Amaji Chambhar ... | 50 |

c19.s3.t5.2

11. Yesaji valad Tanhaji Mahar ... 60
12. Uma valad Pangnak Mahar ... 35
13. Pemnak valad Yesnak Mahar ... 60
14. Jabjya valad Satba Mahar ... 25
15. Luma valad Hema Mahar ... 60

Group 2

c19.s3.t6.1

1. Javji valad Gangaji Patil Thorat ... 34
2. Sakhoji valad Satbaji Mule ... 34
3. Khandoji valad Shetyaji Mule ... 60
4. Gundaji valad Pilaji Patil Dhete ... 35
5. Hangoji valad Malji Dhangale ... 70
6. Chahu valad Mahadji Parit ... 35
7. Aman valad Lakshman Mali ... 55
8. Nagoji valad Muktaji Mule ... 35
9. Jarya valad Nama Mang ... 25
10. Nimbaji Panman ... 20 and his mother Rakhmai ... 65

c19.s3.t6.2

The winner in this case paid a Harki of Rs. 200.

c19.s3.t6.3

*11. Trial by Ordeal:*

c19.s3.t6.4

Although the parties signed a Rajinama to abide by the evidence of the Pandhar, and furnished security for their obedience, the defeated party might claim a fresh decision by ordeal and if one ordeal failed he could ask for a trial by an ordeal of a different sort. Sometimes he changed his mind about the selection of ordeal before the first proposed by him had been tried. How much indulgence was given to a Maratha suitor, in order that he might be satisfied that no injustice had been done to him, and how often he changed his mind can be shown by a document quoted by Mr. Bhaskar Vaman Bhat in the Tritiya Sammelan Vritta of Bharat Itihas Sanshodhak Mandal.¹³ "Upon that, on the second day Somaji refusing the decision of the *gots* demanded an ordeal by water. He said that the man drawn by hand out of the water by the Pandhri should be regarded as in the right. When you were asked whether you were willing to undergo that ordeal you answered in the affirmative. The next day he changed his mind, refused the ordeal by water and suggested that the case should be decided by an oath in the mosque at Kasba Ranjangaon; on the third day he rejected the idea of an oath in the mosque and again demanded an ordeal by water. Then it was ordered that the plaintiff and the defendant should pour water over each other's hands. He who would pass this ordeal should enjoy the watan. Somaji rejected this proposal also and prayed for an ordeal by fire."

c19.s3.t6.5

¹³ P. 42.

c19.s3.t6.6

Of the ordeals enumerated in the above document the first deserves our special notice, because it was to all intents a trial by the Pandhar or by the *got*. The parties and the Pandhars were sent to a sacred river like the Krishna, or better, to a *sangam* of special sanctity like the Krishna-Vena sangam. There, at an auspicious moment the Pandhars stood on the bank after their bath in the sacred stream. The defendant and the plaintiff still remained standing in the river. Either the Patil or some other trustworthy man there present was then ordered to draw the rightful party from the water and pass a conscientious verdict. An ordinary man would not deliberately give a wrong verdict at such a place, at such a moment and in the presence of all his co-villagers. He would not only ensure for his soul eternal perdition after death, but also public execration while alive. This ordeal was therefore not unreasonable, specially in those times of strong faith in religion and of stronger superstition. In a dispute regarding the Patilki watan of Fursangi, in Tarf Haveli, of Pargana Poona, between the Kamthes and the Gaikwad Harpales, such an ordeal was resorted to. While the assembled Pandhars stood on the sandy banks of the Krishna, Yeknak, a Mahar was ordered by the gots and the balutas to draw the rightful owner of the watan from the river bed and he loudly declared his verdict.¹

c19.s3.t6.7

¹ P. D., Vol. I, p. 168.

c19.s3.t6.8

*12. Ordeal by Fire and heated Metal:*

c19.s3.t6.9

There were so many forms of ordeal that it will not be possible to describe them all. We will here take notice of the more important ones only. One of the most common ordeals was to draw a piece of metal out of a pot full of boiling oil. This had to be performed in a temple of special sanctity and at an auspicious moment previously fixed by the government. The ordeal had to be witnessed by the co-villagers of the parties as well as by a government officer deputed for that purpose. An ordeal with a piece of metal in heated oil is thus described in the summary of a dispute regarding a Patilki watan between Devji and Shankarji Dangat: "You were then sent with Rajshri Apaji Hanmant Subhedhar and Balaji Dadaji and Baghoji Raut, officers from the Huzur and the District to Pali for the performance of an *Agnidivya*. The *got* of that place assembled in the temple and they lighted a fire and heated *ghi* and oil mixed in customary proportion. You bathed and after a declaration of your right, took two pieces of metal from the heated liquid in the presence of all. Then your hand was bandaged and sealed. The next day the aforesaid parties were brought to the Huzur by the Karkun of the District officer. On the third day, in the presence of the Majalasi the bandage was taken off and the seals broken. On your hand were found only the marks that formerly existed there. Nothing more, nothing less; you passed the ordeal successfully.” ¹⁵

c19.s3.t6.10

¹⁵ P. D., Vol. I, pp. 165-166.

c19.s3.t6.11

Another ordeal is described in a document quoted by Mr. Bhat in the journals of the Bharat Itihas Sanshodhak Mandal.¹⁶ There, the palm of the man is first bandaged with leaves of peepul tree and new thread. Then a heated ball is placed on his hand. He is then made to walk over seven concentric circles. After completing the seventh circle he drops the metal ball on a little heap of grain which is burnt and it is thus shown that no fraud has been practised. These ordeals were undoubtedly the relics of a bygone age. But the fallacy of such trials was not altogether undetected; in one case at least we find the Sabha Naik objecting to the demand of a *rava* (drawing out a piece of metal from heated oil) on the ground that when reliable evidence was available, an ordeal should not be permitted. Fire ordeal was in fact very seldom resorted to in ordinary cases.

c19.s3.t6.12

¹⁶ Tritiya Sammelan Vritta, p. 44.

c19.s3.t6.13

Ordeals with boiling water and with burning lamps are also mentioned. In the latter case truth was supposed to be indicated by the period of burning. When an oath in a temple or mosque was taken, a period was fixed within which divine intervention was expected to take place. If the man lied, some illness or other mishap was expected to befall him or his family; but if he was left undisturbed, it was believed that his assertion had been corroborated by the god of the temple. On one occasion a man took an oath on the feet of Shahu Chhatrapati, and as fate would have it, died of cholera within a month.¹⁷ "Then Bhikaji Harpala said that the Maharaja's feet were the Krishna to him and he would take an oath on his (Raja's) feet. Accordingly he swore that the watan in the aforesaid Mauja belonged to him and that Kamthe was a Thalvaik (Mirasi) peasant. Within a day or two of this oath Bhikaji Gaikwad got cholera, he had to be carried back to the village on the back of a bullock and there he died after a month in consequence of that false oath taken on his behalf."

c19.s3.t6.14

¹⁷ P. D. Vol, I, p. 168.

c19.s3.t6.15

Boundary disputes between two villages were often settled by ordeal. One of the Patils walked on the right boundary with a cow's hide on the head; here also a fixed period was allowed to elapse for the manifestation of divine confirmation. But the Patil had afterwards to undergo a Prayashchitta for defiling his body.¹⁸ 13. *Nivad patra and Watan patra:*

c19.s3.t6.16

¹⁸ P. D. Vol, 1, p. 131-133. For another ordeal to settle such disputes see P. D. Vol. VII, p. 65.

c19.s3.t6.17

At the conclusion of the case a *nivad patra* or a *watan patra* was given to the winners in the Peshwa's name—for all judicial measures were taken in his name. The winner was allowed to take away the original, but a true copy was always kept in the Peshwa's Daftar. These copies were sometimes useful in testing the genuineness of the old records. In a dispute regarding a Deshmukhi watan in 1792-93 an old document of doubtful character was produced. The seals affixed on it had become indistinct and unreadable. It was then compared with old documents of similar dates and with similar seals and its authenticity was proved beyond doubt.¹⁹

c19.s3.t6.18

¹⁹ P. D., Vol. VIII, p. 69.

c19.s3.t6.19

Elphinstone says that generally great favour was shown to men of rank. In all countries, in all ages, men of wealth and influence have for all practical purposes defied law with more or less impunity.²⁰ It does not seem that in Maratha countries they enjoyed any unusual advantage.

c19.s3.t6.20

²⁰ That things were not much better in this respect at Bombay during the Governorship of Elphinstone can be proved by the interesting revelation made in the Journal of Lady West. I quote here only one extract: "Aug. 24 (1823), Mr. G. has the natives flogged without any examination, trial or usual formality. A friend sends a note to him and says pray flog the bearer and it is done." For other instances of high-handedness see *Bombay in the days of George IV*, ed. Drewitt, Longman, 1907.

c19.s3.t6.21

In the 11th volume of his Sources of Maratha History, Mr. V. K. Rajwade has published a long but incomplete account of a suit about the inheritance to the property of the Chaskar family. The Chaskars were near relations of the Peshwa (1779 A. D.) and the case was brought before the celebrated Nyayadhish Ram Shastri.

c19.s3.t6.22

The procedure was, of course, informal, but that was not because the parties concerned were near relatives of the Peshwa. Even the procedure of village Panchayets were extremely informal. Sometimes Ram Shastri was interviewed in his own house in private. Sometimes he consulted a common friend of the disputants; but on the whole he conducted the business with firmness and with an attitude of strict justice. In fact Ram Shastri was not the person to deviate from the path of justice for the sake of any man in the world. And Ram Shastri was not the only Nyayadhish famous for uprightness in Maratha History. European observers cared more for form and procedure and hard and fast rules. The absence of these led them to pass sweeping remarks on the judicial system of the Marathas. Even an acute observer like Elphinstone could not rise above this ordinary prejudice. Not that the rich and powerful could not buy justice sometimes, but that was by no means the general rule; we find high officials punished for misdemeanours, and their watans and inams attached for liquidation of debts. Powerful Sardars, however, could not be brought under law. This was the bane of feudalism, till then prevailing in European countries too. So far as the European critics of the Maratha system are concerned, it was a difference of ideals more than anything else that shocked them so much.

13. Fees in Civil Suits

c19.s4.1

Let us now enquire what fees the Peshwa's government usually demanded from suitors in civil cases. In suits relating to money bonds, the usual fee was twenty-five per cent. of the money realised, sometimes a lower fee, that of twenty per cent. was charged. The creditors however had very seldom to go to the law courts of the land for realisation of the money lent. The custom of the country allowed them to practise dunning, the most extreme form of which was *dharna*, which debarred the debtor from taking any food or drink before satisfying his creditor. Dharna could be practised against men of the highest rank in the country, the Peshwa not excepted. Daulat Rao Sindhia was subjected to it by some Muhammadan soldiers, as Broughton tells us.²¹ Government interference for realisation of loan could therefore be necessary only in exceptional cases, and a fee of twenty-five or twenty per cent. cannot be regarded as too high. These cases were sometimes referred to a Panchayet. "Fair bankrupts," says Elphinstone, "seem to have been let off pretty nearly as with us. Fraudulent ones were made to pay when discovered, notwithstanding previous release."²² In partition suits however, property up to the value of Rs. 300 was exempt from any charge, property above that value was charged at the rate of ten per cent. Some estimates may also be formed of the customary laws from the summaries of the civil suits preserved in the Peshwa's Daftar. In inheritance cases we find the eldest son could not be altogether disinherited. So far as watans were concerned, the right of seniority belonged to a son of a lagna marriage, although younger than a son of pat (widow remarriage). A mother could claim maintenance from her son and also money for religious performances as well as for going on a pilgrimage. Although the property of a man without any issue belonged by law to the government, still consideration was made for his widows. Brothers were sometimes allowed to inherit the property of a childless brother on the payment of an inheritance tax, and adoption of a child always required a formal sanction of the government, which ordinarily could be secured without any difficulty. The property of a foreigner dying within the Peshwa's territory was carefully preserved, and investigation was made about the legal heirs of the dead. When they could not be found, the property of the dead man was spent in charity for the welfare of his soul in the other world. In disputes about watans, the disputed property was placed under attachment to force quick settlement.

c19.s4.2

²¹ Broughton, pp. 31-32.

c19.s4.3

²² Elphinstone's Report, p. 65.

c19.s4.4

Peshwa Madhav Rao II and his Ministers

14. Elphinstone's Strictures

c19.s5.1

Elphinstone says, "The judicial system seems to have been very imperfect. There was no regular administration of justice : no certain means of filing a suit : and no fixed rule of proceeding after it had been filed. It rested with the officer of Government applied to, to receive a complaint or to neglect it altogether. The reception of your appeal from his injustice, equally depended on the arbitrary will of his superior. The other occupations of these officers rendered it difficult for them to attend to judicial affairs, even if well disposed, and these occupations increasing with the rank of the officer, the PAISHWA (or the minister) who was the mainspring of the whole machine, must have been nearly inaccessible to all men and entirely so to the poor." 23 Perfection of course cannot be claimed for the Maratha institutions or for any human institution in the world—there would have been no room for evolution had everything been perfect. But the observations of the great historian, to say the least, do not touch the heart of things. No doubt the Kamavisdars and Mamlatdars had other works to do. But their judicial duties mainly consisted in appointing a Panchayat and confirming its decision. Their work was more of supervision than of direct participation in the administration of justice. Moreover, there were provincial courts under the District Nyayadhish in important towns. If every one of these officers refused to receive a complaint, the plaintiff could still approach the Nyayadhish or chief justice at Poona, and the Peshwa himself. The chief court at Poona had always been put under a brilliant set of scholars and independent judges like Ram Shastri and his successors from 1760 downwards to the time of Baji Rao Raghunath, when Balkrishna Shastri Tokekar held that important office. The Peshwa was not at all inaccessible to his subjects, rich or poor. The students of old documents know well how many of these watan patras and nivad patras begin with the customary clause,—"you came to the Swami at such and such a place and complained to him, etc."

c19.s5.2

²³ Elphinstone's Report, p. 65.

c19.s5.3

The Peshwas went out on tour every year and received complaints and punished offenders. In the month of Rabilaval of San Ihide Arbain Maya wa Alf only (1740-41) Peshwa Balaji Baji Rao visited no less than eleven places (Pali, and some neighbouring forts and villages Parli, Vadvathar, Poona, Garade, Pargaon, Bhuinj and Satara).²⁴ Nor was this journey of exceptional length. Similar tours were made almost every year if not every month. Even the worthless Baji Rao Raghunath used to go out on these tours and on one occasion he punished some miscreants.²⁵ The Maratha princes were always accessible even to the poorest of their subjects—and Broughton, by no means an admirer of things Maratha, was struck with the ease and informality with which Daulat Rao Sindhia could be approached even while on an expedition by the seekers of justice.²⁶

c19.s5.4

²⁴ P. D., Vol. II, p. 238.

c19.s5.5

²⁵ See letters of Parashram Bhat and Malhar Ramchandra Kulkarni to Rajashri Nanaji. Rajwade, Sources of Maratha History, Vol. X, p. 398.

c19.s5.6

²⁶ Broughton, Letters from a Maratha Camp.

15. Maratha and English Judicial Institutions compared

c19.s6.1

The fact is judicial institutions were still going through a process of evolution in India as elsewhere, and evolution proceeded on different lines in different countries. In England for instance more stress was laid on procedure. English jurists had given a scientific turn to their legal studies and the Legislature of the land had by a series of Acts made a systematic effort to remove any ambiguity where it previously existed as to the purpose and intents of the existing laws. Even the unwritten customary laws had been given a definite shape through the decision of the courts. There was a well organised machinery for enforcing the laws of the land and there was a body of professional men well versed in laws to help the judges in interpreting them. The English suitor knew quite well where to file his case in the first instance and to whom to appeal and he was ordinarily sure of a fair decision provided he could afford to pay the costs of a lengthy suit, for a good lawyer always charged a high fee and a chancery suit caused proverbial delay.

c19.s6.2

The Maratha system on the other hand excelled in simplicity. There was no codified law, no fixed procedure, and even a lengthy suit hardly cost the parties anything but the unavoidable worries and anxieties. But these advantages were marred by the disadvantage caused by the lack of settled procedure. The suit could be prolonged indefinitely by the obstructive tactics of an unscrupulous party. He could claim a trial by ordeal after the Panchayat had already delivered a judgment. And if he found one ordeal inconvenient he might demand a second trial by an ordeal of a different description. If the Mamladar was a dishonest man, and he was seldom proof to present, the losing party might still get the decision arrived after so much delay and so many ordeals cancelled, and one who had an influential and highly placed friend at the court had always some advantage over his less fortunate adversary. To add to these difficulties there was no professional lawyer and the provisions of the law, written and unwritten, were not always clear and definite. The old Hindu law-givers did not always agree and differences were sometimes accentuated by their commentators. Customs varied in different districts and offered no valuable aid to the bewildered judge. The result was that the honest poor might often find it difficult to defend his rights against the dishonest rich. But the English laws and English lawyers and English courts would hardly help him better. For in the first instance the poor man could not expect to engage as able a lawyer to defend him as his wealthy adversary and the heavy expenses of a lengthy suit would ultimately prove his ruin, even if he was so fortunate as to get a favourable verdict. It is unnecessary to labour this point any further. It is clear that both the systems had their merits and demerits. Elphinstone passed very severe strictures upon the weak points of the Maratha judicial system, because in his own country he had not been familiar with them. But he was by no means blind to the merits of the Panchayat as he had recommended its continuation even after the British conquest of the Peshwa's territories.

16. Dr. Hope's Views

c19.s7.1

It should be noted in this connection that British courts of law were at first unpopular in India. Their settled code of procedure, which ought to have commended itself to the Indian suitors was at the beginning regarded as an unnecessary innovation. The punishment inflicted by these courts, the rapidity with which their judgments in some cases were enforced, also bewildered the illiterate Maratha peasant, and it is no wonder that they sighed for the Panchayat with which they were familiar.

c19.s7.2

In fact the simplicity of the old judicial system readily caught the imagination of European writers and Dr. Hope, who had first-hand knowledge of India, definitely expressed himself in favour of the original Maratha judicial system. He says, "We have found much to admire and very little to detest in the administration of public officers at Gwalior. Such is our conviction knowing well that if the people of India—the 180 millions—could go to the poll on a choice of governments an almost countless majority would prefer a native one to one which was ever supervising and controlling every act of their public life and haunting them with a vision of an English court of Law." ²⁷

c19.s7.3

²⁷ The House of Scindea, p. 5.

17. Serious Crimes Very Rare

c19.s8.1

In the administration of criminal laws also the authorities were the same as in civil cases;—the Patil in the village, the Kamavisdar or Mamlatdar in the District, the Sarsubhedar in the province and the Peshwa and the Chief Justice at Poona above all.

c19.s8.2

If we judge by the effect, the administration of criminal justice in Maharashtra was as efficient as that of civil justice under the Peshwas. Although he does not miss any opportunity of denouncing the system as a whole, Elphinstone himself admits, "The country was peculiarly free from crimes. Gang robberies have never, since I have been in the country, reached to such a pitch, as to bear a moment's comparison with Bengal, described in the paper laid before the Parliament."

18. Panchayat in Criminal Cases

c19.s9.1

It does not seem that a Panchayat was so frequently resorted to as in civil cases; but that it was sometimes called to make enquiry into the facts of a criminal case as well as to pass judgment thereon, admits of no doubt. In the year 1760-61, Yeshvant Rao Kshirsagar of Kameri in Tarf Valve, of Prant Karhad, and two others were killed in consequence of a dispute about land revenue, and Kshirsagar's son complained against the murderers. We find that the Patil, Kulkarni and Rayats of the village were summoned to the Huzur for an enquiry into the case, and afterwards the compensation to be paid to the murdered man's son was settled by a Panchayat.²⁸

c19.s9.2

²⁸ P. D., Vol. II, pp. 54-56.

c19.s9.3

"Upon that Shidoji bin Firangoji Kadam surnamed Ludge, half Patil of the village, Anaji Tukdev and Janardan Baburao Kulkarni and other Rayats were summoned to the Huzur. After proper enquiry and by the evidence of the Patil, Kulkarni, and the Rayats of the village, the charge of the three murders was proved against the aforesaid Sultanji and Baji. This dispute had to be disposed of, and according to the suggestion of the Panchayat it was ordered that out of the Inam lands of Sultanji and Baji Patil and the Mirasland of the Kunbi two houses and sixty-five bighas of lands with boundary duly described should be granted to the complainant as a hereditary Inam." This document not only shows that a Panchayat was appointed for trying homicides, but also that the relatives of the murdered person had to be compensated by the murderer.

c19.s9.4

19. *Fine according to the Resources of the Offender:*

c19.s9.5

Capital punishment in the days of Shahu Chhatrapati and Balaji Baji Rao seems to have been unknown. Murder and treason were punished with fine, confiscation of property, and imprisonment. The Maratha rulers seem to have realised that punishment was to be used as a corrective only and not to drive the offender to the extreme of despair and convert him into a sworn enemy of human society. That explains the queer but common prayer on the part of convicted offenders that the fine inflicted should not exceed their means; and why Government agreed not only to take the offenders' income into consideration while fixing the amount of fine, but also allowed them to pay the sum so fixed, by instalments.

c19.s9.6

"Morshet Bani, a resident of Peth Somvar was accused of murdering his wife. He was brought to the Huzur and examined. He was found guilty and he confessed that he had committed the crime. He also represented that a fine should be levied upon him, taking into consideration what his debtors owed to him and he should be absolved of his sin."⁹⁹

c19.s9.7

⁹⁹ P. D., Vol, II, p. 50.

c19.s9.8

Although the guilty had to pay a fine according to his means, the innocent, if accused, could not escape without any payment. Perhaps that people should suspect him was thought a sufficient offence. In 1752-53 Rupaji bin Rambhaji Mudtadak was accused of pelting Setya, the younger son of Jakhoji bin Setyaji Bhadag Vanjare, to death, and although his innocence was proved, he had to pay a Harki of Rs. 1,500.³⁰ Elphinstone rightly remarks, "the innocent might sometimes suffer, but the guilty could scarcely ever escape."

c19.s9.9

³⁰ P. D., Vol. II, pp. 47-48.

c19.s9.10

When the government levied Harki upon the innocent, a false accuser could not expect mercy when detected. Fine was the usual punishment for such an offence. Three cases of false complaints are found in the Selections from Balaji Baji Rao's Diaries. In the first, Vithoji Jingar was fined Rs. 75 for bringing a false charge of theft against Govindaji Jagannath Deshmukh.³¹ In the second we find how Rama, a barber of Kasba Saswad, had brought a false charge of witchcraft against Subhanji Jingar and was fined Rs. 40. The Gunhagari as usual was "*Jivan Mafik*."³² In the third instance Soyraji of Fort Narayangad was fined Rs. 50 for accusing Maini, daughter of Rakhamaji Repal of adultery with Shivaji a washerman.³³ It is noteworthy that Maini proved her innocence by an ordeal by metal (that of drawing out a piece of metal from a potful of boiling oil). So in these three cases of false complaints, the fine varied from Rs. 40 to 75. Evidently the offenders were men of small means, for during the administration of the same Peshwa and only ten years later, we find that Hanmant Bhat, brother of the Pratinidhi, was fined Rs. 1,000 for giving false evidence.³⁴ This explains the policy of levying fine in proportion to the means of the offender. What would be a preventive in case of Rama, a barber, could not be a preventive in case of the Pratinidhi's brother. Therefore the latter had to pay a fine twenty-five times more than what was levied upon the former, although the offence committed by the barber might have been more serious.

c19.s9.11

³¹ P. D., Vol. II, p. 61.

c19.s9.12

³² *Ibid*, pp. 61-62

c19.s9.13

³³ Ibid, p. 63.

c19.s9.14

³⁴ Ibid, p. 61.

c19.s9.15

20. Witchcraft:

c19.s9.16

The offence of the barber mentioned above brings to our notice a crime that would certainly appear novel to us, witchcraft. Yet the European states had taken serious steps for its suppression. Witchcraft was made criminal in England by a statute of Elizabeth which had not been repealed till 1736. In the meantime no less than 30,000 men and women had lost their lives on the charge of selling their souls to the Devil. The most inhuman of these murders were those of Mrs. Hickes and her daughter a girl of nine in 1716. In Austria the law against witchcraft was suffered to disfigure the statute book as late as 1766. The Peshwas, however, thought fine and imprisonment sufficient penalty for intercourse with evil spirits. Only one case is recorded of capital punishment. But special measures were taken against prisoners convicted of witchcraft and sorcery. In 1775-76, Martand Joshi Rairikar was imprisoned in Killa Ghangad for practising sorcery, the warders in charge were instructed not to allow him to apply sacred ashes or sandal mark on his forehead or to perform the daily religious rites and to recite sacred hymns.³³ He was not to be allowed to take more than one meal per day, and he was required to prepare his own food. Sometimes the Peshwas went further, and took direct measures to deprive the supposed offender of his infernal power. In 1775-76 Moraji, a resident of Poona, was accused of killing a man through the instrumentality of evil spirits. His offence was proved beyond any doubt by the evidence of fifty of his caste people! They further prayed that in order to render his witchcraft ineffectual, two of his upper teeth should be extracted, and he should be made to drink water from a Chambhar's reservoir, and lastly he should be excommunicated. This pious prayer was, for public safety, granted; and further, as the persecuted wizard had threatened to practise witchery against his caste people through Berads and Mangs, if he was excommunicated, the Peshwa ordered him to be imprisoned in the fort of Kohaj and there kept under strict guard.³⁶

c19.s9.17

³³ P. D., Vol. VIII, pp. 114-115.

c19.s9.18

³⁶ P. D., Vol. VIII, p. 115.

c19.s9.19

When a man was charged with causing harm to others by sorcery and witchcraft, he was generally fined and ordered to recall the evil spirits under his commands. Public opinion and common suspicion were regarded as sufficient proofs³⁷ of his offence. Only in one case was a man banished on the charge of witchcraft. So anxious was the Peshwa to save the person and property of his subjects from the infernal influence of the evil spirits in the service of the sorcerers and wizards that two officers were appointed to make a thorough enquiry about the sorcerers in the Talukas Anjanvel, Suvarndurg, Ratnagiri, Vijayadurg, Devgad and Saudal in the year 1774-75. The first officer was asked to visit the villages of Talukas Anjanvel and Suvarndurg, and he got two Karkuns and six peons to assist him, and he was also authorised to employ five more peons if necessary. The second officer was appointed on an annual salary of Rs. 350 and an additional allowance of Rs. 261 for Karkuns and peons and stationery. He was to levy fine on the wizards when detected, but here also the principle laid down was that the amount of fine should not be exorbitant. The document clearly states that "in the instructions about enquiry framed by the Sarsubha the amount of fine prescribed was from Rs. 25 to Rs. 50. But the Rayats of the Konkan were poor and the Sarsubha wrote a letter in the year San Salas that taxes and fine should not be insisted on. Therefore you should fix Gunhagari (fine) according to their means."³⁸ Even highly placed people often suffered for suspected intercourse with the evil spirits. A Kashmiri general in the Sindhia's employ was disgraced on this account in the early years of the 19th century.

First 124 of 181 passages. Read on

Linked texts (2)