Pranam

Part 3

22    It has been stated by Yājñavalkya that the defeat or victory of a
party depends on the strength of the evidences adduced by that party. There
are cases where both plaintiff and defendant may put forward evidences of
same weightage and are true equally. Then, it becomes difficult to
determine which one should get preference over the other. Yājñavalkya now
gives the rule to be followed in such circumstances to know the strength of
various proofs resorted by plaintiff and defendant, which in turn will
decide the case or lead to a decision.  It signifies when evidences for
both the parties have been proved, in the civil cases like debt, etc., the
party setting up the latter transaction, wins the case. An exception to
this rule is provided that in a case of mortgage, gift and purchase or
sale, evidence in support of the prior claim is stronger. Therefore, the
party who has proved a prior transaction succeeds in such a case.

23    Yājñavalkya’s rule of procedure contemplates the rule concerning
order of examination of witnesses and shifting of burden of proof. This
rule is not meant for any special kind of cases but for the trial of all
kinds of cases in general. When there are witnesses available for both
sides, the witnesses of the *pūrvavādin* are to be taken up first. The
claim of him being invalidated, the turn comes next to the witnesses of the
*uttaravādin*. The commentators have interpreted this rule in two different
sense depending upon the word *pūrvavādin* and *uttaravādin*. According to
the *Mitākṣarā*, the term *pūrvavādin* does not denote him who first makes
a complaint, but a person claiming priority such as either he has got it by
gift, or he has enjoyed it at an earlier date. He explains that, when both
the parties have witnesses to produce, then the witnesses for the party
claiming first in position to enjoy the subject-matter of dispute, should
be examined first. If that party’s claim loses ground or importance or
becomes weak due to the admission of defendant about the prior state of
things, but giving a subsequent plea to invalidate the prior state of
things then the witnesses for other side should be examined. Most of the
commentaries like the *Dīpakalikā*, the *Vīramitrodaya* and the *Aparārka*,
etc. hold a contrary view to that of the *Mitākṣarā*. They accepts that a
*pūrvavādin* is he who files the plaint or makes the complaint first,
meaning the plaintiff Thus, if witnesses of both the parties are present,
witnesses from the plaintiff’s side should be admitted, examined or
accepted. The allegation of the plaintiff being reproached, the witnesses
in support of the defendant should be examined.

24     Yājñavalkya has dealt with the law on evidence relating to the
document, witness and ordeal as separate chapters containing rules of
procedure. It is worth mentioning that possession is described in the
*asādhāraṇa
vyavahāramātṛkā prakaraṇa*.  He seems to consider it not as a substantive
law, but a right created by the procedure of proof. The *Mitākṣarā* establishes
with reason the evidentiary value of possession, or how can it be a mode of
proof. Possession can invariably and correctly measure the probative value
of the sale and such other transactions on satisfying certain specified
conditions. These are set up as the basis of ownership, which help to draw
an inference, or when a direct inference cannot be drawn, a conclusion may
be drawn by implication. Thus, possession may form part of either an
inference (*anumāna*
<https://www.wisdomlib.org/definition/anumana#dharmashastra>) or an
implication (*arthāpatti*
<https://www.wisdomlib.org/definition/arthapatti#hinduism>), and hence it
is a good means of proof.[95]
<https://www.wisdomlib.org/hinduism/essay/yajnavalkya-smriti-vyavaharadhyaya-study/d/doc628180.html#note-e-170532>
Possession
as evidence is useful to certain special cases and circumstances.

25   The consequences of possession as evidence over certain kinds of
property are emphasised by Yājñavalkya. The right of a person over land is
lost in twenty years when he does not raise any protest even after seeing
it being enjoyed by another person for that period of time and it is
limited to ten years so far it relates to monetary or other movable
property. Aparārka supports the literal meaning of this rule that on
fulfilling the special conditions, the original owner loses the ownership
over immovable properties at the end of twenty years of adverse possession
by wrongful possessor and loss of ownership over movable property occurs on
ten years’ adverse possession.  An owner should not neglect or keep silence
after it comes to his notice that a stranger has been taking possession of
it wrongfully. The  *Mitākṣarā*  holds a different view. It follows that he
can secure the right to claim profit in case of a possession without
notice, which is stated thus: *paśyato ’bruvato bhūmerh ānirviṃśati
vārṣikī/* The passage *abruvatoḥ*, etc., suggest that in assessment of
possession with notice but without protest also he may get a right to
follow proceeds before twenty years. Manu holds that ten years of
uninterrupted possession of immovable property by another person before the
eyes of the owner, not being an idiot or a minor, the right of recovery at
law is loss to him by law and the adverse possessor shall be entitled to
retain that property. It is only in the *Yājñavalkyasmṛti*, where the point
is laid down unmistakably with conditions. Thus, Yājñavalkya, like an
expert jurist, has already prescribed separate limitation period of movable
and immovable property for adverse possession. Those special cases, which
are exempted from these limitations, are as follows:

1.   Mortgaged or pledged articles or properties (*ādhi*
<https://www.wisdomlib.org/definition/adhi#dharmashastra>),

2.   Boundary disputes (*sīmā*
<https://www.wisdomlib.org/definition/sima#dharmashastra>),

3.   An open deposit, i.e. wealth deposited in trust exhibiting the quality
and quantity (*upanikṣepa*),

4.   Properties of mentally retarded or idiot (*jaḍa*
<https://www.wisdomlib.org/definition/jada#dharmashastra>),

5.   Properties of minor (*bāla*
<https://www.wisdomlib.org/definition/bala#dharmashastra>),

6.   A sealed deposit, i.e. kept in safe custody in another’s hand without
mentioning its contents (*upanidhi*
<https://www.wisdomlib.org/definition/upanidhi#dharmashastra>),

7.   Property of the king,

8.   Property of woman and

9.   Property belonging to Brāhmaṇa.

26    Yājñavalkya proceeds to describe towards the relation between title
and possession. He shows the relative strength of possession to form an
evidence in this way–

“Ā*gama* <https://www.wisdomlib.org/definition/gama#history> is superior to
possession, but not to hereditary possession; even *āgama*
<https://www.wisdomlib.org/definition/agama#hinduism> is not a strong claim
in the absence of possession”.[109]
<https://www.wisdomlib.org/hinduism/essay/yajnavalkya-smriti-vyavaharadhyaya-study/d/doc628180.html#note-e-170509>

According to Viśvarūpa, *āgama* means written document.
<https://www.wisdomlib.org/hinduism/essay/yajnavalkya-smriti-vyavaharadhyaya-study/d/doc628180.html#note-e-170536>
Vijñāneśvara
defines it as the origin or source of ownership such as gift, purchase,
etc., or meaning only title. In the *Vīramitrodaya*, the derivative sense
of *āgama* is given as by which becomes one’s own, i.e. origin of title
such as sale, acceptance of a gift etc. Aparārka by the term *āgama* denotes
that which bestows the ownership, of sale, gift, etc. Thus, the title
originating out of purchase, gift, etc., is more powerful than possession.
Again, title or deed of ownership is not superior to the possession, which
has descended or handed down from the line of ancestors continued from the
past three generations, such as the father and the rest. This rule asserts
that both possession and title lend support to each other and are inter
dependent on each other to be an evidence of greater force. Possession,
independent of title is powerful when it comes down from preceding line of
ancestors. It is said to be a subject of *smārtakāla*.. On the other hand,
immemorial possession can itself be an evidence without depending on title
or deed of ownership. In such cases, existence of title is presumed from
possession.

27   Next, Yājñavalkya sets forth the rule that the man who has made the
acquisition of a title, if any suit is brought against him, then he must prove
the source of title. However, in case of son or grandson, possession has
more force. They need not prove the origin of the title handed down in a
successive line of ancestors. Thus, possession is the evidence of a legal
title, which has passed from the father to son by the right of
inheritance.  Yājñavalkya presents an exception to the above-mentioned rule
of possession that in a suit brought against son and grandson relating to
property received from father or line of ancestors as inheritance,
possession has the force to be a valid means of proof of his title. The
trespasser or dishonest people may deceive the original owner with the help
of this principle. It is observed by Mitramiśra
<https://www.wisdomlib.org/definition/mitramishra#hinduism> that strict
adherence to this principle of the text may lead to give decision in favour
of an fraudulent action. Even sometimes within a very short span of time
such as six months only, possession may be taken over by three
generations. In such situations, real intention of that rule will be
defeated. Being conscious of these facts with the intention to safeguard
the interest of true claimant, the author introduces the exception so that
possession cannot be used as a weapon to legalise an illegal title.

28    Yājñavalkya tactfully prescribes the rules of procedure to regulate
positive and negative aspects of possession as a mode of evidence. He has
clearly expounded under what condition, possession inherits decisive power
and when it does not.Another very important rule furnished by Yājñavalkya
corresponds to the modern rule of review. Under the modern judicial system,
review or revision is the procedural provision connecting to both criminal
and civil law. Through these procedures, every court or tribunal can
correct an unintentional or negligent error, which arises in the decisions
owing to procedural defect or by misrepresentation or fraud of a party to
the proceeding which should be corrected to prevent the abuse of process of
court. The general rule of procedure, advocated by Yājñavalkya, is that a
suit decided by an inferior tribunal may be re-tried by the superior one.
In such process, there seems to be none to review the case decided by the
supreme one, i.e. the king. He has mentioned cases where even a suit
decided by the supreme authority can be reopened for review or
reconsideration, after which, the former decision may be set aside or
reversed. The first ground is, when such decisions are obtained through
fraud or force. Next ground can be identified as incompetency (of the
litigant or the witnesses) being a woman or the like. Other grounds may
include trials conducted during tile nights, in closed doors, outside the
village, or with the enemies. These are the exceptions to the finality of
the judgement of the court of justice or the king’s court.

29    Moreover, Yājñavalkya refers some lawsuits as non-maintainable. These
include lawsuits instituted by a drunkard, or intoxicated person; an insane
person; a disabled person; one addicted to gambling; a boy of tender age;
one under the influence of fear, etc., and that lodged by a person without
any personal connection with the matter of dispute. The last four verses of
the asādhāraṇa vyavahāramātṛkā prakaraṇa are devoted to the rules which
demonstrate how the king should deal with the property, recovered after it
being lost, hidden treasure or those recovered from thieves and robbers.
When a lost valuable article is recovered and brought before the king, it
is his duty to restore it to the owner. After that, rules regarding
treasure of unknown ownership found hidden, also known as treasure trove (
*nidhi* <https://www.wisdomlib.org/definition/nidhi#hinduism>), are laid
down. If the treasure trove is found by the king, then half of it is to be
given to the Brāhmaṇas
<https://www.wisdomlib.org/definition/brahmana#dharmashastra>, when a
learned Brāhmaṇa comes by it, he can keep the whole *nidhi*. Any other except
them having found the treasure trove, the king should take one sixth of
that treasure trove.

30   From the above discussion, it may be deduced that Yājñavalkya intends
to establish *vyavahāra* as a separate entity of *dharma*, containing what
may be called secular or positive law in modern sense; a judicial procedure
containing the elements the plaint, the answer, the doubt, reasons,
deductions, the evidences, the decisions, etc., along with its padas
<https://www.wisdomlib.org/definition/pada#hinduism>, i.e. subjects or
titles of law are being set out there in. *Yājñavalkyasmṛti* marks a high
development of law of procedure, which is important for legal history of
India and bears affinity to present day law of procedure.  END    KR 1222

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