5. Modes of Proof

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

5. Modes of Proof.

* 68. Those invested with legal authority must pay strict attention to the (various) modes of proof. That even which is provable fails to be proved, if the (prescribed) modes of proof are not attended to.

69. ⁶⁹ Documents, witnesses, and possession are the traditional three means of proof, by which a creditor endeavouring to recover his loan may obtain what he has lent.

70. ⁷⁰ If the Creator had not created writing as an

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excellent eye (as it were), the affairs of this whole world would not take their proper course.

71. Writing is an excellent eye (as it were), because it solves all doubts which may have arisen in regard to place, time, profit, matter, quantity, or stipulated period.

72. He who, having received a chattel in a certain place, tries to deny the fact, is liable to be confronted with witnesses and convicted, difficult as it may be to prove his guilt.

73. A document is subject to many blemishes; witnesses are neither exempt from old age nor from death; possession, which has been continually held, is the only sure mode of proof, as it is not connected with any material object (liable to decay).

74. Thus have these three modes of proof been declared, by means of which a creditor may recover an outstanding debt, which has not been paid to him and called into doubt (by the debtor).

75. ⁷⁵ A document is valid at all times; witnesses (may give valid evidence) as long as they live; possession acquires legal validity through the lapse of a certain period. This is a legal maxim.

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76. ⁷⁶ Of the three modes of proof here enumerated in order, each previous one is superior to the one named after it; but possession is the most decisive of all.

* 77. ⁷⁷ Though a document be in existence and witnesses living, that is no (true) property of which possession is not actually held. This is specially true as regards immovables.

* 78. ⁷⁸ If a man is foolish enough to allow his goods to be enjoyed by strangers in his own eyesight, they shall belong to the possessor, even in the presence and during the lifetime of the rightful owner.

* 79. ⁷⁹ Whatever the owner looking on quietly suffers to be enjoyed by strangers for ten years,

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though he is present, that cannot be recovered by him.

80. ⁸⁰ If he is neither an idiot nor a minor, and the enjoyment takes place before his eyes, his right to it is extinct by law, and the possessor is allowed to keep it.

* 81. ⁸¹ A pledge; a boundary; the property of a child; an open deposit, an Upanidhi deposit; women; and what belongs to the king or to a learned Brahman, none (of these descriptions of property) is lost (to the owner) by adverse possession.

82. ⁸² Pledges and the rest, excepting the property of a woman and of the king, are however lost to the owner if they have been enjoyed in his presence for twenty years.

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* 83. The property of a woman and of a king is never lost (to the owner), should it even have been enjoyed for hundreds of years without a title (by strangers).

84. Where there is enjoyment, but no title of any sort, there a title is required in order to produce proprietary right. Possession is not sufficient to create proprietary right in that case.

* 85. A clear title having been produced, possession acquires validity. Possession without a clear title does not make evidence (of ownership).

* 86. He who can only plead possession, without being able to adduce any title, has to be considered as a thief, in consequence of his pleading such illegitimate possession.

* 87. He who enjoys without a title for ever so many hundred years, the ruler of the land should inflict on that sinful man the punishment ordained for a thief.

* 88. ⁸⁸ If a man holds the property of a stranger without a title, it is not legitimate enjoyment. However, after the death of the occupant, it may be enjoyed legitimately by his descendants.

* 89. ⁸⁹ In cases falling within the memory of man,

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possession with a title creates ownership. In cases extending beyond the memory of man, and on failure of documents, the hereditary succession of three ancestors (has the same effect).

* 90. ⁹⁰ If the occupant is impeached (by the legitimate owner), he cannot escape defeat (without refuting the charge). That possession only can create proprietary right, which has been legitimately inherited from the father.

* 91. ⁹¹ When possession has been successively held, even unlawfully, by the three ancestors of the father (of the present possessor), the property cannot be taken away from him, because it has gone through three lives in order.

* 92. ⁹² What has been deposited with a third person to be delivered ultimately to the owner (Anvâhita), stolen goods, ordinary deposits, what is held by force, loans for use, and what is being enjoyed during the absence of the owner, these are six (things possessed) without a title.

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* 93. ⁹³ If a litigant dies before a lawsuit (regarding property enjoyed by him) has been decided, the son is required to prove his title. The enjoyment is not legitimate (otherwise).

* 94. ⁹⁴ After the death of a creditor, witnesses, though available, cannot give valid evidence, except if a statement made by the creditor himself on his deathbed (has been preserved).

95. ⁹⁵ After the death of the defendant, the deposition of witnesses ceases to make evidence. An attested document retains its validity during his lifetime only.

* 96. ⁹⁶ Where a pious act is announced by a diseased

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man, the testimony of the witnesses retains its validity even after his death. The case is the same with the six (things possessed without a title), viz. an Anvâhita deposit and the rest.

97. ⁹⁷ In all transactions relative to a debt or to any other (among the eighteen titles of law), the last act is the decisive one. In the case of a gift, a pledge, or a purchase, the prior act settles the matter.

Footnotes

58:69 The term pramâna, which has been translated 'means of proof,' is both a philosophical and a law term. A. explains it etymologically, as denoting anything which may be known or discerned accurately. Thus, what is counted or reckoned, may be known by figures. What is capable of measurement, may be known by its measure. Similarly, where a lawsuit is pending, the truth may be known by having recourse to one of the ordinary modes of proof, viz. documents, witnesses, possession, and ordeals. Therefore, these means of proof should be duly applied by holy men, kings, and assessors of the court, and others endowed with legal authority, because that which is doubtful cannot be proved otherwise.

58:70 The term 'documents' in this section seems to relate principally to the well-known land grants which have been found in many p. 59 parts of India. Yâgñavalkya II, 22; Vishnu VI, 23; Vasishtha XVI, 10.

59:75 Witnesses can give evidence while they live only, whereas a document which has been carefully preserved, remains evidence even after the death of the creditor, debtor, and witnesses, and is capable of substantiating a claim raised by the son, grandson, great-grandson, or more remote descendant of the original owner. On the other hand, even after a lapse of time, i.e. when four or five generations have passed away, and an immeasurable period has elapsed, a creditor may recover his loan by dint of uninterrupted possession. 'This is a legal maxim,' i.e. this is the relative value of the divers kinds of proof. A.

60:76 The apparent contradiction between the first and second parts of this paragraph is thus removed by A.: 'Possession of immovables without a title does not create proprietary right, as stated in par. 84. Therefore, the possessor of landed property becomes its lawful owner, if his right or title is established by witnesses, but not otherwise. Thus far possession is more important than witnesses. In the same way documents with a title are superior to witnesses, and possession with a title is superior to witnesses, documents, and ordeals.'

60:77 This paragraph is intended to show the weakness of proof by witnesses or documents, where it is not accompanied by possession. Generally speaking, any of the three kinds of proof is invalid, where it is not accompanied by one of the other kinds. A. Yâgñavalkya II, 2 7; Manu VIII, 200.

60:78 If a man suffers his movable or immovable property to be enjoyed by another, the latter will become its lawful owner after the lapse of a long period, no matter whether it has been bestowed on him through affection, or forcibly seized by him, or abandoned by its previous owner. A.

60:79 Where, however, the owner, though unable to recover his property, owing to special reasons, proffers his claim to it every day, or every month, or every year, it is not lost to him, even after the lapse of a longer period than ten years. A. Identical with Manu VIII, 147.

61:80 'If he is not an idiot,' nor afflicted by a chronic or agonising disease, nor dumb, blind, or deaf. A. Identical with Manu VIII, 148.

61:81 'The property of children' is not lost, though it has been enjoyed for a long time by their guardian. 'An Upanidhi deposit,' i.e. a valuable article which has been delivered under cover to another person. 'A woman,' one who has been delivered to a stranger as a deposit, and enjoyed by him. 'The property of a king,' i.e. land. 'The property of a learned Brahman,' i.e. cows. A. Kullûka, in commenting on the identical verse of Manu, refers the term 'woman' to 'female slaves,' &c. The rules laid down in pars. 79-81, which recur literally in the code of Manu, seem to belong to an older order of ideas than those contained in pars. 84 foll. It may be presumed that the harsh law under which adverse possession of ten years’ standing was constituted a source of proprietary right, was mitigated at a subsequent period, and has been inserted here as a sort of historical reminiscence only. According to Brihaspati, thirty years is the ordinary period of prescription. Identical with Manu VIII, 149; Vasishtha XVI, 18.

61:82 In this paragraph, as in the preceding one, the term 'a king’s property' is referred to landed property by A. The correctness of this interpretation seems questionable.

62:88 While the possessor is alive, the property which he is enjoying without a title cannot become his. The owner may claim it at any time. When, however, the possessor dies, unmolested by the owner, the property continues to be enjoyed by his heirs. Therefore, the owner should not fail to assert his own right. A.

62:89 The Mitâksharâ explains the term 'what falls within the memory of man' as denoting a period of 100 years, in accordance with a text from the Veda, 'The life of men extends over a hundred years.' If this explanation be correct, the present rule agrees in substance with the rule laid down in 89 b and 91, a period of a hundred years being about equal in duration to three lives. It is p. 63 true that another legislator, Vyâsa, mentions sixty years as the duration of continued possession extending over three generations.

63:90 If the owner claims his own property from the possessor, the former has to make good his claim. That enjoyment, however, which has passed from the father to the sons by right of inheritance, constitutes a legal title for them. A. Yâgñavalkya II, 28.

63:91 If the great-great-grandfather has held possession, be it even without a title, of a certain thing, and if it has been enjoyed, after his death, by the great-grandfather and by the grandfather, it cannot be claimed from the father by any one. Vishnu V, 187.

63:92 The term Anvâhita is usually explained, like Anvâdhi, as denoting what has been deposited with a third person to be delivered ultimately to the owner. A., however, explains Anvâhita as denoting a valuable object received from another in exchange for a worthless article.

64:93 Supposing a man were to have obtained possession of the property of a stranger by one of the previously mentioned illegitimate modes of acquisition, if the rightful owner were to impeach him for it, and if the possessor were to die before the case has been decided, in that case the son would have to substantiate his claim, and would not be allowed to continue his enjoyment of the property without doing so. A. Yâgñavalkya II, 29.

64:94 A man says after the death of his creditor, 'I have restored this or that cow, female buffalo, bull, or field to my creditor; certain honest men have witnessed the transaction.' Another man says, 'Your father owes me one hundred drachmas; certain persons have witnessed the transaction.' He dies, however, before his claim has been examined. In either of these two cases trustworthy witnesses even are of no avail. If, however, the creditor has stated his claim before witnesses on his deathbed; or if a man has given evidence as witness on his deathbed regarding a certain loan, about which the creditor has asked him; the testimony of the witnesses has to be considered as valid even after his death. A.

64:95 'The defendant,' i.e. the debtor. An attested document is valid while he lives Only. It loses its validity after his death. A.

64:96 When a diseased father has stated his intentions regarding a religious endowment or other matters of this kind during the absence of his sons, but in the presence of witnesses, the deposition of the latter will be valid even after his death. Similarly, when a man p. 65 during an attack of illness, repents of his former act, and declares before witnesses that he has deposited with a friend a worthless object in exchange for a valuable one, and wishes to restore the former; or that he has stolen something and wishes to restore it to the owner; or that he wishes to restore a deposit, which had been delivered to him by the owner; or that he intends to make restoration of what he had obtained by forcible means; or of a loan for use; or of what he had been enjoying in secret: in any one out of these six cases the deposition of the witnesses is valid even after his death. A. See par. 92 and note.

65:97 In all the eighteen titles of law, beginning with the law of debt, the latest act is considered decisive. The law is different in cases of acceptance, where e.g. a village belongs to him who has been the first to receive it; in the case of a pledge or mortgage, and in the case of a purchase, where the pledge or mortgage, and the article sold belong likewise to the first taker. A. Nearly identical with Yâgñavalkya II, 23.