FIRST TITLE OF LAW.

The Minor Law Books (SBE33), by Julius Jolly, [1889], at sacred-texts.com

p. 41

THE LAW OF DEBT.

1. Payment of a Debt.

* 1. ¹ Which debts must be paid, which other debts must not be paid; by whom, and in what form (they must be paid); and the rules of gift and receipt, (all that) is comprised under the title of 'Recovery of a Debt.'

* 2. The father being dead, it is incumbent on the sons to pay his debt, each according to his share (of the inheritance), in case they are divided in interests. Or, if they are not divided in interests, the debt must

p. 42

be discharged by that son who becomes manager of the family estate.

* 3. ³ That debt which has been contracted by an undivided paternal uncle, brother, or mother, for the benefit of the household, must be discharged wholly by the heirs.

* 4. ⁴ If a debt has been legitimately inherited by the sons, and left unpaid by them, such debt of the grandfather must be discharged by his grandsons. The liability for it does not include the fourth in descent.

5. ⁵ Fathers wish to have sons on their own account, thinking in their minds, 'He will release me from all obligations towards superior and inferior beings.'

p. 43

6. ⁶ Three deceased (ancestors) must be worshipped, three must be reverenced before the rest. These

p. 44

three ancestors of a man may claim the discharge of their twofold debt from the fourth in descent.

* 7. ⁷ If a man fails to pay on demand what had been borrowed or promised by him, that sum (together with the interest) goes on growing till it amounts to a hundred krores (= one milliard).

* 8. A hundred krores having been completed, he is born again, in every successive existence, in his (creditor's) house as his slave, in order to repay the debt (by his labour).

* 9. ⁹ If an ascetic or an Agnihotrî dies without

p. 45

having discharged his debt, the whole merit collected by his austerities and by his Agnihotra belongs to his creditors.

* 10. ¹⁰ A father must not pay the debt of his son, but a son must pay a debt contracted by his father, excepting those debts which have been contracted from love, anger, for spirituous liquor, games, or bailments.

* 11. Such debts of a son as have been contracted by him by his father's order, or for the maintenance of the family, or in a precarious situation, must be paid by the father.

* 12. ¹² What has been spent for the household by a pupil, apprentice, slave, woman, menial, or agent, must be paid by the head of the household.

13. ¹³ When the debtor is dead, and the expense has been incurred for the benefit of the family, the debt must be repaid by his relations, even though they be separated from him in interests.

p. 46

* 14. ¹⁴ The father, uncle, or eldest brother having gone abroad, the son, (or nephew, or younger brother) is not bound to pay his debt before the lapse of twenty years.

* 15. ¹⁵ Every single coparcener is liable for debts contracted by another coparcener, if they were contracted while the coparceners were alive and unseparated. But after their death the son of one is not bound to pay the debt of another.

* 16. ¹⁶ The wife must not pay a debt contracted by her husband, nor one contracted by her son, except if it had been promised by her, or contracted in common with her husband.

* 17. ¹⁷ A sonless widow, and one who has been enjoined by her dying husband (to pay his debt), must pay it. Or (it must be paid) by him who inherits the

p. 47

estate. (For) the liability for the debts goes together with the right of succession.

* 18. ¹⁸ A debt contracted by the wife shall never bind the husband, unless it had been contracted at a time when the husband was in distress. Household expenses are indispensably necessary.

* 19. ¹⁹ The wives of washermen, huntsmen, cowherds, and distillers of spirituous liquor are exempt from this rule. The income of these men depends on their wives, and the household expenses have also to be defrayed by the wives.

* 20. ²⁰ If a woman who has a son forsakes her son and goes to. live with another man, that man shall take her (separate) property. If she has no property of her own, her son (shall take the property of her husband).

* 21. ²¹ If, however, a woman repairs to another

p. 48

man, carrying her riches and offspring with her, that man must pay the debt contracted by her husband, or he must abandon her.

* 22. He who has intercourse with the wife of a dead man who has neither wealth nor a son, shall have to pay the debt of her husband, because she is considered as his property.

* 23. ²³ Among these three, the heir of the wealth, the protector of the widow, and the son, he is liable for the debts who takes the wealth. The son is liable, on failure of a (protector of the) widow and of an heir; the protector of the widow, on failure of an heir and of a son.

* 24. ²⁴ Debts contracted by the husbands of the last

p. 49

[paragraph continues] Svairinî and of the first Punarbhû, must be paid by him who lives with them.

25. ²⁵ A wife, a daughter-in-law, a woman entitled to maintenance, and the attendants of the wife: by these have debts to be paid, as also by one who lives on the produce of land (inherited from the debtor).

[If among such brothers as have come to a division and are separate in wives, affairs, and wealth, one should die without leaving issue, his wife inherits his wealth.]

Footnotes

41:1 The twenty-five sections into which the law of debt has been divided in this translation correspond in the main, though not throughout, to the headings proposed by Asahâya in different portions of his work. Asahâya, as pointed out before, is not consistent with himself in this respect. It is curious to note that the whole law of evidence, excepting the general rules laid down in the preceding chapters, has been inserted by Nârada between the divers rules of the law of debt. He seems to have followed in this respect, as in other particulars, the example set to him by the earlier legislators, such as Manu and Yâgñavalkya.

I, 1, 2. If a debt contracted by the father has not been repaid during his lifetime, by himself, it must be restored, after his death, by his sons. Should they separate, they shall repay it according to their respective shares. If they remain united, they shall pay it in common, or the manager shall pay it for the rest, no matter whether he may be the senior of the family or a younger member, who, during the absence of the oldest, or on account of his incapacity, has undertaken the management of the family estate. A.

42:3 A debt contracted for the household, by an unseparated paternal uncle or brother, or by the mother, must be paid by all the heirs. If they are separate in affairs they must pay for it according to their shares. If they live in union of interests, they must repay it in common. A.

2, 3. Manu VIII, 166; Vishnu VI, 27, 35, 36; Yâgñavalkya II, 45, 50.

42:4 A. proposes an explanation of this paragraph which is not in accordance with its literal meaning, and decidedly opposed to the principles of a sound method of interpretation. He says that the term 'grandsons' must be taken to relate to the grandsons of the debtor's sons, i.e. to the great-grandsons of the debtor, and that the term 'the fourth descendant' signifies the fourth in descent from the debtor's sons, i.e. the fifth in descent from the debtor himself. This assumption, he says, is necessary in order to reconcile the present rule with the statements of all other legislators, and with Nârada's own rule (par. 6). Vishnu VI, 27, 28; Yâgñavalkya II, 50.

42:5 A. uses this paragraph in support of his theory that the obligation to pay the debts of an ancestor extends to the fourth in descent. As the great-grandson has to discharge 'the debt to superior beings,' i.e. as he has to offer the customary Srâddhas to his great-grandfather, so he is liable for debts contracted by him, which have not been repaid.

43:6 Three deceased ancestors, i.e. the father, grandfather, and great-grandfather, may claim the discharge of their terrestrial and celestial liabilities from the fourth in descent. This rule is illustrated by the history of an action which was brought before a court in Patna. A merchant of the Brahman caste, by the name of Srîdhara, had lent the whole of his wealth, consisting of 10,000 drammas (drachmas), which he had gained through great labour, to a trader, by the name of Devadhara, on condition that interest amounting to two per cent. per mensem of the principal stock should be paid to him. The interest was duly paid to Srîdhara at the end of the first month. In the second month, however, Devadhara met his death through an accident. His son died of an attack of cholera. Devadhara's great-grandson alone was left. His name was Mahîdhara. As he was addicted to licentious courses, the management of the estate was undertaken by his sons and maternal uncles. They got into the hands of a cunning Brahman called Smârtadurdhara, who advised them not to pay a single rupee to Srîdhara, as he was able to prove from the law-books that he had no claim to the money. The uncles of Mahîdhara, much pleased with this piece of advice, promised to give 1,000 drammas to the Brahman if they need not pay the money to Srîdhara. Thus, when at the close of the second month, the uncles and guardians of Devadhara's great-grandson, Mahîdhara, were asked by Srîdhara to pay 200 drammas, being the amount of interest due on the sum lent to Devadhara, they refused payment. They said: 'We do not owe you the principal, much less any amount of interest. The Brahman Smârtadurdhara has pointed out to us that the obligation to pay stops with the fourth in descent.' Srîdhara was struck dumb with grief and terror on hearing this announcement made to him. When he had regained his senses, he repaired to the court of justice, attended by his family, friends, and servants, and impeached Mahîdhara, together with his uncles, for their dishonesty. Both parties took sureties. The uncles of Mahîdhara engaged Smârtadurdhara to plead for them. After pretending his clients to be connected with his family by a friendship of long standing, he went on to refer to a text of Nârada (above, par. 4), as proving that the obligation to pay the debts of ancestors stops with the fourth in descent. All his arguments, however, were refuted, and held out to derision by a learned p. 44 Brahman, by the name of Smârtasekhara, who, at the end of his address, charged him openly with having taken a bribe from his clients. The consequence was that Mahîdhara and his uncles lost their cause. A. I have quoted this story in full, because it presents a vivid picture of the way in which judicial proceedings used to be transacted in ancient India. The doctrine which the story is intended to illustrate, viz. that the liability to pay debts contracted by an ancestor extends to the great-grandson, is opposed to the teaching of such an eminent authority as Vigñânesvara, who maintains in the Mitâksharâ that the great-grandson is not liable for debts contracted by his great-grandfather, and, conversely, that he does not inherit his property. See the author's Tagore Law Lectures (Calcutta, 1885). The same opinion was apparently held by the author of the Nârada-smriti, as may be gathered from par. 4, and by other Smriti writers. It appears quite probable that the present paragraph, which is not quoted in any of the standard compilations on civil law, may have been inserted by the author of the commentary, who wanted to make the contents of the Nârada-smriti agree with his personal views. The shorter recension and the quotations, instead of the present paragraph, exhibit another paragraph, in which the obligation of the son only to release his father from debt is inculcated.

44:7 This paragraph has been translated according to the explanation given in Vîramitrodaya, p. 358.

44:9 The ample heavenly reward due to an Agnihotrî, i.e. one who has kept the three sacred fires from the date of his birth, or who has practised austerities without interruption, shall belong to the creditor, and not to the debtor. A.

45:10 10, 11. A debt contracted by one blinded by love, or incensed by wrath against his own son, or in an outrageous state of intoxication, or mad with gambling, or who has become surety for another, must not be paid by the son. If, however, a debt has been contracted, even by the son, for the benefit of the household, or in a dangerous situation, it is binding on the father. A. According to Kâtyâyana, a debt contracted from love is a promise made to a dissolute woman, and a debt contracted from anger is a reward promised by an angry man to a ruffian for injuring the person or estate of his enemy. 'A debt contracted in a precarious situation,' i.e. a debt contracted in danger of life. A. Yâgñavalkya II, 45, 46, 47; Vishnu VI, 33, 39.

45:12 'A pupil,' one engaged in studying science. 'An apprentice,' a pupil who resides with his preceptor for a certain fixed period. 'A slave,' whether born in the house or purchased. A. Vishnu VI, 39.

45:13 Where the debtor has gone abroad and met his death through illness, or accident, the debtor may claim his due from his relatives, should they even be separated in interests. A.

46:14 Necessary debts, such as those enumerated in paragraph 11, must be paid at once by the other family members. Where, however, the father, uncle, or eldest brother resides abroad, and is known to be alive, the son, &c. need not pay his debt till after the lapse of twenty years. A. Vishnu VI, 27; Yâgñavalkya II, 50.

46:15 After the death of those who have contracted the debt jointly, the son of one is not bound to pay the debt of another than his father. His liability does not extend beyond his father's share of the debt. A. Vishnu VI, 34; Yâgñavalkya II, 45.

46:16 A woman need not pay a debt contracted by her son, unless she has promised herself to repay it. Similarly, she is not bound to pay a debt contracted by her husband, unless she should have contracted it jointly with him, or if he should have enjoined her on his deathbed to pay his debts, or if she has inherited his property. A. Vishnu VI, 31, 38; Yâgñavalkya II, 46, 49.

46:17 A widowed woman who has no son is bound to pay the debt of her husband, if he has commissioned her to do so on his deathbed, or if his property has escheated to her. If she is unfit to take the estate, her husband's debt must be repaid by those who have inherited the estate. The property and the liabilities go together. A. Vishnu VI, 29; Yâgñavalkya II, 51, &c.

47:18 A debt contracted by the wife, for the purpose of saving from distress her husband, son, daughter, or other family members, must be discharged by the family head. A. Vishnu VI, 32, &c.

47:19 Yâgñavalkya II, 48; Vishnu VI, 37.

47:20 If a widow who has a son, blinded by love forsakes her son and betakes herself to another husband, taking her Strîdhana (separate property) with her, the Strîdhana shall belong to her second husband, and not to her sons. If, however, a woman who has no separate property goes to live with another man and takes her first husband's property with her, it shall not belong to the second husband. It shall escheat to her son by the first husband. A. This interpretation has been followed in the text. It is hardly reasonable, however, to explain the term dravya, in the first instance, as denoting Strîdhana, and then again, as denoting property inherited from the husband. It would seem that the reading adopted by Asahâya is erroneous. The Vîramitrodaya and other compilations read rinam for dravyam, '(the son) must pay the whole debt, if she has no property of her own.' Vishnu VI, 30; Yâgñavalkya II, 51.

47:21 If a widow who has a young son takes her deceased husband's p. 48 property and goes to live with another man, the latter is bound to pay the debts contracted by her first husband. His conduct is unimpeachable, likewise, if he lets her go, she taking the whole of her property with her. A.

48:23 This rule contains the answer to the question: Who is liable for the debts of a deceased person, whose property has been taken by his heirs, whilst his wife through poverty has acceded to another man, and whilst his son remains both penniless and deprived of the protection of his mother? The decision is as follows. Between those three, the heir of the wealth and no other is liable for the debt. Where, however, there is no heir, owing to the want of assets, there the son is liable, if there is no widow; and the widow's husband, if there is no son. The respective liability of the son and of the taker of the widow depends on the circumstances of the case. If the widow is a young and handsome woman of high origin, her second husband has to discharge the debt of her first husband, according to the maxim that she is considered as his property (see above, paragraph 22). If, however, she is kept like a handmaid and receives a mere livelihood from the man who has taken her, the son is bound to pay the debt. A. Yâgñavalkya II, 51.

48:24 The term uttamâ 'the first,' besides its ordinary meaning, conveys a secondary meaning. It implies that when any of the seven Svairinîs and Punarbhûs happens to be specially handsome or p. 49 gifted, her second husband is bound to pay the debts contracted by the first. A. This, no doubt, is a highly artificial interpretation. A definition of the seven Punarbhûs and Svairinîs is given further on, XII, 46-53. A. refers to XII, 48 and 52. However, the meaning of the term 'the first Punarbhû' is defined in XII, 46. The Mitâksharâ (p. 77) and Vîramitrodaya (p. 347) explain the term 'the last of the Svairinîs' as referring to one who, overwhelmed with distress, delivers herself to another man. See XII, 51, and note.

49:25 25 b. This paragraph, which contains a rule relative to the law of inheritance, seems to be a marginal gloss, which has somehow crept into the text by mistake.