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HINDU
JUDICATURE



B. GURU RAJAH RAO, B,



A., B



Rs, 2



GANESH & CO,



GIFT OF




fix




ANCIENT HINDU JUDICATURE



ANCIENT HINDU JUDICATURE



BY



B. GURU RAJAH RAO, B.A., B.L.
H

District Mansif



FOREWORD BY
SIR JOHN WOODROFFE.



GANESH & CO., MADRAS.
1920.



' : S.Q,



MADRAS :

Printed by SrinivasaVaradachari & Go.
4, Mount Road.



CONTENTS.

CHAPTER PAGE

I. Law Courts and their constitution. 1
II. Nature of Vyavahara or actions in

general ... ... 20

III. Institution of actions ... ... 29

IV. Special rules of pleading and

counterclaims ... ... 53

V. Principles of proof ... ... 58

VI. Oral evidence ... ... 77

VII. Documentary evidence ... 104

VIII. Divine proof ... ... 117

IX. Some principles of adjudication ... 136

X. Judgment and Decree... ... 145

Index ... . 151






FOREWORD.

LITTLE is, I think, known of the ancient adjec-
tive law of India. It is well therefore that an
Indian Lawyer should undertake the task of
telling us what it was. He has, I think, well
fulfilled it within the short compass of this
small book.



CALCUTTA, ^
t*ust 26, 1920. j



CALCUTTA,

JOHN



ANCIENT HINDU JUDICATURE

CHAPTER I
LAW COURTS AND THEIR CONSTITUTION.

THE paramount duty of the king is the pro-
tection of his subjects, which involves the
punishment of the wrong-doer. The wrong-
doer cannot be found out unless the wrong com-
plained of is ascertained. The Smritis there-
fore enjoin on the king the duty of enquiring
into such (Vyavaharas) iM^K/ wrongs himself
with the assistance of his councillors.



: H 1

The king should with the help of learned
Brahmans decide such (Vyavaharas) s^^RT: in
accordance with the dictates of Smritis, unruf-
fled by temper or uninfluenced by desire.

The law to be administered is the Dharma
Sastra subject to local and other usages, which are
not inconsistent with the Sastras. The responsi-
bility for the administration of justice rests pri-
marily with the king, though he may seek the
help of some learned Brahmans and his minis-

1 YagDavalkya, Part II, Chapter I : v. I.



"2 ANCIENT HINDU JCDICATUKK. [CBAP. I.

ters in settling the dfeptttes*.- The king may per-
manently appoint some learned persons called
Sabhyas (S^TTi) as members of a judicial assem-
bly 2 . They must be well versed in the Vedas, Mee-
niamsa (rules of interpretation), grammar, and
the Dharmasastras. They must be lovers of truth
and be absolutely impartial. Persons ignorant
of the habits and usages of the country or devoid
of character were to be avoided. 3 They must
be at least 3 in number according to Manu and
5 or 7 according to Brihaspathi. Manu and
Yagnavalkya insist on the appointment of
learned Brahmans only to such posts while Ka-
thyayana allows the choice of any of the twice
born classes possessing the necessary qualifica-
tions in the absence of learned Brahmans. These
appointed councillors are bound to advise the king
properly and to enforce their decision. These
were also required to come to an unanimous
verdict as far as possible. 4 Besides these, the
king may choose some learned Brahmans as
amicus curice to help him with their advice. 5
Their opinion like that of assessors may in-
fluence the decision but not control it. The
verdict of the appointed councillors like that of

1 Mitakehara, Bombay Edition, page 107.

2 Tag. p. II, Oh. I : ?. 2.

3 Brihaepathi.

* Kathyayana and Narada.

* Kathyayana.



CHAP. I.] LAW COURTS AND TffEIR CONSTITUTION. 5

the jury was binding on the king. The appointed
councillors were either stipendiary or honorary
while the nominated councillors were always
honorary. Thus the court presided over by the
king consisted of his ministers, his chief priest,
and the permanent members of the assembly and
the learned Brahmans specially invited for
the occasion. 1 The chief priest advised the
king in the exercise of his prerogative of mercy
and regulated the punishment to be awarded. 3
For the sake of securing the confidense of the
people in these tribunals the king may invite
to the judicial assembly some respectable and
aged merchants of good family and wealth 3 .
They were permitted only to witness the pro-
ceedings but not to take part in the deliberations.
If the king was unable, owing to his attention
being directed to other activities, to take part
in the judicial assembly himself, he must
appoint a learned Brahman in his place. 4 He
was called Pradvivaka srref^nF (one who hears
first both parties and clears up their dis-
putes). He was the chief or president of the
assembly. This assembly constituted the highest
judicial tribunal (next to the court of the
king. In course of time two classes of courts

1 Kathyayana.

2 Stnrithi Chandrika, Mysore Edition. Vy. Kb. page 32.

3 Kathyayana.

* Yag. P. II. Ch. I : v. 3.



4 ANCIENT HINDU JUDICATURE. [CHAP. I.

came into existence, one class consisting of
courts constituted under the authority of the
king, and the other class consisting of tribunals
constituted by the consent of parties which
were therefore in the nature of arbitration
courts. Agriculturists, artisans, traders and other
labouring classes were permitted to settle dis-
putes concerning their professional interests by
tribunals presided over by men of similar calling
as they were likely to understand their own
disputes better than strangers. This was perhaps
the origin of several arbitration courts which
sprang up in later times. 1 Besides these sta-
tionary tribunals which held their sittings in
towns or villages, there were some itinerant
courts also. The first class of courts comprised
in order of rank :

(1) The chief tribunal presided over by the
king himself in the capital of the province
or wherever he may sojourn and constitu-
ted as above described.

(2) The court presided over by the deputy
appointed by the king, called Pradvivaka,
and his councillors who formed the judicial
assembly. The authority was delegated to
them by the king authorizing them in

writing or by the handing over of hisseaL



i Sukra Nithi, Cb. V, e. 5, v. 18.



CHAP. I.] LA.W COURTS AND THEIR CONSTITUTION. 5

(3) The assembly of inferior judges appointed
by the king and invested with local juris-
diction over small towns or villages. 1

The second class of Arbitration courts consist-
ed of (1) ^ (Poogha), (2)fa (Sreni), (3) $
(Kula) in gradation of rank. 2

1 J*T (Poogha) is an association of persons
resident in any town or village drawn from
various castes and following different profes-
sions.

(2) Srfa (Sreni) is an assembly of persons of
different castes or of one caste following a
particular profession, such as a guild of horse-
dealers, betel-sellers, weavers, and shoe-makers.

(3) 3?^ (Kula) is a collection of individuals
who are related as agnates or cognates or by
marriage. 3 Kula being an assembly of the
kinsmen of the parties was the lowest court of
arbitration which had to be resorted to in the
first instance, afe they were far more likely to
know all about the dispute much better than
strangers. Next above it was the court of the
Sreni, which consisted of strangers, but residents
of the same locality. Their decision was likely

to give better satisfaction to the defeated suitor
as tending to remove any taint of partiality

1 Sm. Ch. p. 41.

* Narada and Yag. p. II, Ch 1. v. 30.

3 Mit. page 130.



4> ANCIENT HINDU JUDICATURE. [CHAP. I-

which might attach to the decision of the Kula,
Highest of these was the Poogha which was
perhaps the most cosmopolitan in constitution.,
The judicial assembly appointed by the king as
well as the supreme court of the king in council
supervised | the work of these arbitration
courts. 1

Both these sets of tribunals had their own
ministerial officers also to carry on the work
of the courts. They were (1) iWFi (Ganaka)
the accountant who computed the sums due
and prepared decrees (Nirnaya Pathra) ; (2.)
?fcsr3> (Lekhaka) the scribe who wrote out the
pleadings for the parties ; (3) the sequestrator
who took care of the property seized ; (4) spapw
(Sadhyapala) the summoner who enforced the
attendance of parties and (5) sometimes the
moderator who supervised the entire pro-
ceedings and discoursed on morality to the
edification of the parties, judges, and the officers
of the court. 2 The members of the assembly
gave their opinion, the president pronounced
his decision, and the king enforced the decree. 3

Similar in composition were the inferior

tribunals in each of the various sub-divisions

of the province. According to the Artha

1 Mit. page 132. Sm. Cb, paee 38.

8 Brihaspathi



CHAP. I,] LAW COURTS AND THBIE CONSTITUTION. 7

Sasthra each province was divided into a
Sangrahana, a Kharvatika, a Dhronamukha
and a Sthaniya. A Sangrahana was the centre
of a group of (10 villages; a Kharvatika of 200
villages ; a Dhronamukha of 400 villages ; and
a Sthaniya of 800 villages. It is surmised that
a Sangrahana was the lowest unit of village
administration and that 20 Sangrahanas were
formed into a sub-division called Kharvatika
and that 20 Kharvatikas constituted a district
called Dhronamukha, and (Sthaniya) a province
consisted of two such districts. In each of
these units of administration commencing from
the :lowest, similar sets of tribunals, each
consisting of 3 judges, were constituted for
carrying on the administration of justice. 1

Kautilya's Artha Sasthra describes two classes
of courts called ^feftq and *<^<fciJrsR Dhar-
mastheeya and Kantaka Sodhana as prevalent
at that time. The Dharmastheeya courts were
the regular civil courts which had jurisdic-
tion over the administration of civil and cri-
minal justice, in respect of ordinary matters.
The Kantaka Sodhana which consisted of 3
Commissioners (S^SR: Pradestaras) seem to
have exercised special jurisdiction over matters
of commerce- and industry and prevention

1 Mr. Sama Sastry's translation of Artha Sastra, Book
III, Ch. I. v. I. Book II Ch. I. v. 163.



8 ANCIENT HINDU JUDICATURE. [CHAP. I.

of breach of the peace and determination of
grave offences against the State. They saw
to the enforcement of contracts among arti-
sans and to the regulation of their wages
and kept constant vigilance over the detection
and prevention of heinous crimes. 1 These tri-
bunals are not referred to in the Manu Smrithi
as such courts of exclusive jurisdiction appear to
have sprung up later with the further advance
of civilisation and consequent spread of com-
merce and industry. The Manu Smrithi simply
refers to some of these disputes as matters for
the decision of the king.

JBrihaspati divides courts into four classes,
viz., (1) moveable courts, (2) stationary courts, (3)
courts deriving authority from the king, and (4)
courts presided over by the king himself. He
mentions 3 kinds of itinerant courts, viz., one
in the forests for the benefit of foresters, one
among the caravanserai merchants, and one
among military men. The court presided over
by the king himself may be stationary or
moveable. It may be held wherever the king
may sojourn. The other courts were all
stationary. 2

According to Bhrighu, there were 15 kinds of
courts: The 3 itinerant courts mentioned

1 Nagendranath Law's Ancient Hindu Polity, ?. I. pages
119 and 120.

a Sm. Ch, page 41.



CHAP. I.] LAW COURTS AND THEIR CONSTITUTION. 9

above, f4) the courts presided over by residents
of the neighbouring villages in disputes about
village matters, (5) a court presided over by
persons chosen by both parties among kinsmen,
(6) among merchants or (7) among townsmen,
(8) courts presided over by villagers, (9) or by
townsmen, (10) or by several families, (11) or by
guilds, (12) or by persons learned in the four
sciences of polity, (13) or by Kulikas, (14) courts
appointed by the king, and (15) the supreme
court of the king. Excepting the last two, the rest
were arbitration tribunals which derived their
jurisdiction from the consent of the parties and
were formed whenever the parties chose to in-
voke their aid. Oat of these the first five were
itinerant courts. These arbitration courts were
empowered only to decide but not to carry out
their decisions. Their jurisdiction was also
ousted in serious cases of crime relating to vio-
lence, theft, etc. 1

The stationary courts were required to be
held every day in the morning except on
certain Thithies (Chathurdasi, Amavasya,
Pournami and Ashtami). 2 The hour of holding
the court was fixed at 4 Indian hours after
sunrise, making allowance for the time taken
for morning ablutions. 3

1 Sru, Ch. page 46.
3 Samvartha.
3 Brihaspathi and Kathyayana.



10 ANCIENT HINDU JUDICATURE. [CHAP. L

The king shall not try any dispute created
by himself or by his agents among his subjects. 1
Nor shall he out of any improper motive enquire
into any dispute not laid before him by the
aggrieved party or his recognised agent. 2 There
are however some exceptions to this rule which
cover heinous offences against the person or
majesty of the king called *v& (Chala) and
certain grave offences against society called
(Aparadha) and minor offences called
(Pada). These offences were investigated
and brought to the notice of the king by
hired spies and informers. Except on such in-
formation the king could not take cognizance of
any complaint on his own motion. Excepting
the parties aggrieved or their friends and rela-
tives duly authorized|to appear for them, no one
else was permitted to appear before the king
and file a plaint or complaint. 3

An action attains finality either upon a
verdict given on the pleadings or on oral
evidence. The former is called rfrfcr (Theeritha)
while the latter is called 3?3ftre ( AnusistaK 4

Judgments, the parties to which were either
mad or deprived of their senses or afflicted

1 Pitamaba and Manu.

* Mauu, Oh. 8 v. 43.

s Sra. Ch. page 62.

4 Narada and Manu ; also Sm. Ch. page 302.



CHAP. I.] LAW COURTS AND THBIE CONSTITUTION. H

with mental distress at the time of trial or
were infants, old people, or dependents upon
others, were not binding on them. 1 Also a
decision which was on the face of it ambiguous
or to which the persons affected thereby were
not parties was not conclusive. Judgments
passed in respect of persons who could not sue or
whose complaints could not be entertained such
as enemies of the country and persons exiled by
the king had no validity. 3 Excepting under
these circumstances a judgment was always
conclusive and was not liable to be set aside
except by way of jJpfrr (Poonarnyaya) which
comprised both review and appeal.

REVIEW.

The decisions of all the courts including the
highest could be altered on review by the same
courts if there were grounds for doubting its
soundness. A verdict given on account of
compulsion or fear brought to bear upon the
courts could be modified on discovery of such
extraneous influence. Decisions in cases of
occurrences which took place under suspicious
circumstances at nights, or inside a house or
outside a village, which showed concealment of
the real facts from the courts might be subject to
revision. 3

1 Tag. P. II. Cb. II. v. 3*.

2 Manu.

Yag. P. II. Cb. II, v. 31.



12 ANCIENT HINDU JUDICATURE. [CHAP. I.

APPEAL.

In other cases, a party dissatisfied with a
decision may appeal against it to the next
higher tribunal. 1 In case of success of the
appeal the members of the judicial assembly
whose decision was upset in appeal were liable to
a punishment of fine for their error along with
the party who secured from them a wrong
verdict in his own ; favour. 2 The fine was
double the amount of the claim. The punish-
ment for corrupt or perverse judgment was
twice the amount of fine inflicted on the
unsuccessful party. 3 If the wrong decision had
been arrived at on false evidence the witnesses
alone were punished, provided the party had not
been guilty of procuring perjured testimony.*
No appeal was allowed in cases where a verdict
was based on a party's own admissions. 5 Appeals
preferred without any grounds to sustain them
were punished with similar fines. 6

In the case of the regularly constituted courts
under the authority of the king, appeal lies
from the lowest of these to the next higher
tribunal up to the highest. Even against

1 Bribaspatbi.

2 Narda and Kathyayana.
8 Tag. Part II. Oh I. ?. 4.
4 Sm. Cb. page 303.

8 Narada.

Narada and Yag. Part II. v. 306.



CHAP. I.] LAW COURTS AND TBEIR CONSTITUTION. 13

the decisions of the highest judicial assembly
appointed by the king, appeal could be preferred
to the king in person, according to Narada,
while other Smrithi writers make the decision
of the highest judicial assembly final. Appeals
are permitted even against the decisions of
arbitration courts. Appeal may be taken from
the Kula to the Sreni, from the Sreni to the
Poogha and finally to the judicial assembly
and the king. The king was assisted by a
Privy Council which consisted of 12 or 16 mem-
bers as at the time of the Maurya Dynasty. 1

A suit once commenced did not terminate
with the death of the suitor but could be
continued by or against the heirs of the deceased
party. 2

Notes to Chapter I.

1. The composition and constitution of the
ancient Indian law courts reveal certain
important characteristics which cannot escape
notice. In the first place they were all of them
in the nature of judicial assemblies or pancha-
yats presided over by several judges and none
of them resembled the present Indian tribunals
presided over by single judges. It would be
interesting study to trace the origin and

1 Vincent Smith's History of Ancient India, 3rd. Edn,
page 140.

* Narada and Mitakshara, page 130.



14 ANCIENT HINDU JUDICATURE. [CHAP. I.

development of the single judge system, if it
ever existed in ancient India which the British
Government has introduced into all the sub-
ordinate courts except the highest, and which
seems to be neither indigenous nor to correspond
to the British system. Pitamaha distinctly
prohibits a single judge trying a cause. He
says that a prudent man should not trust a
single judge however virtuous he may be
and that in every law suit the decision ot
several persons commands greater respect than
that of a single person. The ancient system of
judicial administration in India seems to
correspond more nearly to the British judicial
system consisting of the judge and jury rather
than to the present system. The inconvenience
of a single judge system is too patent for notice
just as the advantages of a judicial assembly
are too obvious for mention. The success which
apparently attended the ancient system must
at any rate encourage those who feel any doubt
,/ about the efficacy of the panchayat system in
civil disputes and also establish the claim for
the extension of the jury system into at least all
criminal trials.

2. These ancient judicial assemblies were
also sufficiently representative in their character.
They included not only men learned in the law
but also representatives from the professions
and the aristocracy. Such a varied composition



CHAP. I.] LAW COURTS AND THEIR CONSTITUTION. 15

of the assembly gave it an amount of elasticity
which is denied to the present law courts with
their hidebound rules and forms. They are far
more likely to appeal to the imagination of
the people and to inspire confidence in them.

3. The differentiation between criminal
courts and civil courts was unknown, though
the difference between a crime and a civil
wrong was not absent from the minds of
the ancient law-givers. They recognised the
difference but seem to have entrusted the dis-
charge of both the functions to the same
tribunal, perhaps in the interests of economy,
if not of efficiency as well. In modern times
also, such a combination may be trusted to
conduce to the same results. Advocates of the
separation of judicial and executive functions
under the present system of administration in
India may find support for it from the ancient
system which seems to have worked admirably
well. Elaboration of the scheme by which
civil and criminal administration may be made
to vest in the same tribunals separate from the
purely executive functions of the State would
be foreign to the scope of this discussion.

4. Besides the regularly constituted courts
deriving authority from the king, there was
a regular gradation of arbitration courts re-
cognized by the State and resorted to by the



16 ANCIENT HINDU JUDICATURE. [CHAP. I,

people. They were permanent institutions
which worked side by side with the legally-
constituted tribunals. Consent of the suitors
invested them with jurisdiction, while the State
gave legal sanction to their decisions. They
were also under tLe direct supervision of the
State and free scope was afforded to the parties
dissatisfied with their verdicts to go up to the
highest legally constituted tribunal. The obser-
vations of Sir Thomas Munro amply bear out
the successful working of these institutions even
in the early days of the British occupation of
India, when the disintegrating forces owing to
the misrule of previous centuries had already
begun to do their mischief and disrupt village
organisations.

It is clear that these village organisations
existed in all their purity even during the time
of the Chola Kings of Southern India in the 10th
century A. D. and contributed to the efficient
administration characteristic of that dynasty.
They exercised extensive administrative powers
also besides judicial functions. Referring to
these institutions, Mr. Vincent Smith says at
page 464 of his Early History of India, 3rd
edition : " It is a pity that this apparently
excellent system of Local Self-Government,
really popular in origin, should have died out
ages ago. Modern governments would be
happier if they could command equally effective



CHAP. I.] LAW CODJiTS AND THEIR CONSTITUTION. 17

agency." The records about Travancore dating
even from the 12th century A.D. reveal the suc-
cessful working of these village committees
which tended to control what is now usually
called the benevolent autocracy of Native
Rulers. Travancore, having been singularly
immune from foreign influence for long ages
past is often picturesquely described as " a short
epitome of Ancient India " and may be taken
to represent the actual conditions prevailing in
the rest of Ancient India. The authority of
Mr. Vincent Smith may again be cited in
support of this. He says at p. 459 of his book :
" The details of the working of the village
associations or assemblies are specially interest-
ing and prove that the Government was by no
means a merely centralised autocracy. The
village assemblies possessed considerable ad-
ministrative and judicial powers, exercised
under the supervision of crown officials." The
achievements of the past justify the demands
for the resuscitation of village organizations
and foster the hope that under proper State
control, village autonomy on healthy and
progressive lines may still be developed in
India.

5. The ancient law provided also ample

remedy for the rectification of the errors of its

tribunals. It would have been observed that

under the Ancient Hindu Law, a party

2



18 ANCIBNT HINDU JUDIOATUBE. [CHAP. I.

dissatisfied with the decision of even the lowest
court could seek redress either by way of
review or go up on appeal to the protection of
the highest tribunal presided over by the king,
irrespective of the value of the property or the
nature of the claim. Ancient legislation, while
recognising the value of unrestricted right of
appeal from the lowest to the highest tribunal
as an efficient check upon the proper adminis-
tration of justice, sought at the same time to
restrain its abuse. Nothing conduces more to
the purity and soundness of administration of
justice than the wholesome influence of super-
vision by the higher tribunals or gives greater
satisfaction to a defeated suitor than the
concurrence of several tribunals as to the
merits of his claim. The ancient law tried to
prevent such a valuable privilege degenerating
v into encouragement of unnecessary litigation,
by punishing the unsuccessful appellant while
it punished the erring judge as well. The fear
of fine restrained the speculative litigant from
indulging in the luxury of appeal while the
prospect of punishment sharpened the wit of
the judge or awakened his dormant conscience.
No judge in modern days can of course afford
to contemplate with equanimity his position
under such a law. The feeling that a judge is


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