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 -- You received this message because you are subscribed to the Google Groups "Thatha_Patty" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. 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