The Minor Law Books (SBE33), by Julius Jolly, [1889], at sacred-texts.com
The Minor Law Books (SBE33), by Julius Jolly, [1889], at sacred-texts.com
* 1. 1 Whenever (a decision has to be given) in regard to landed property, whether it be a dike (or bridge), a field, a boundary, a tilled piece of ground, or a waste, it is termed a Boundary Dispute.
2. 2 In all quarrels regarding landed property or boundaries, the decision rests with the neighbours, the inhabitants of the same town or village, the
[paragraph continues] (other) members of the same community, and the senior (inhabitants of the district),
* 3. 3 (As also) with those living outside on the outskirts of the village and who live by the tillage of fields situated in those parts, and with herdsmen, bird-catchers, hunters, and other inhabitants of the woods.
4. 4 These men shall determine the boundary, in accordance with the (old) landmarks, (such as) chaff of grain, coal, pot-sherds, wells, sanctuaries, trees,
5. Objects of general notoriety, such as ant-hills, artificial mounds, slopes, hills and the like, and fields, gardens, roads, and old dikes.
6. When a piece of ground has been carried off by a stream, or abandoned (by the owner), or when the boundary marks have been destroyed, (they shall fix the boundary) according to the inference to be drawn from (an inspection of) the spot, and according to the traces of possession (held by the former owner).
* 7. 7 Should the neighbours speak falsely, when called upon to decide a question of this sort, they shall all be punished one by one by the king, each having to pay the fine of the (second or) middlemost degree.
* 8. 8 The corporation, the senior (inhabitants of
the district) and the rest shall also receive punishment one by one: they shall have to pay the fine of the first degree, if they make false statements.
* 9. 9 The boundary should not be fixed by one man single-handed, though he be a reliable person. This business should be entrusted to a plurality of persons, because it is an affair of importance.
* 10. 10 Should a single man undertake to fix the boundary, (he must do so) after having kept a fast, in a collected frame of mind, wearing a garland of red flowers and a (red) cloak, having strewed earth on his head.
* 11. 11 Should there be no persons conversant (with the true state of the question) and no boundary marks, then the king himself shall fix the boundary between the two estates, as he thinks best.
12. According to this rule let all contests be decided in regard to houses, gardens, reservoirs of water, sanctuaries and the rest, as well as the space intermediate between two villages.
* 13. When trees have grown on the boundary (or ridge) separating two contiguous fields, the fruits and blossoms shall be assigned to the owners of the two fields in common.
* 14. 14 When the boughs (or offshoots) of trees grown on the field of one man should take root in the field of another man, they must be known to belong by right to the owner (of that field), because they have sprung forth in another field (than the stem of the tree).
* 15. 15 A cross-road, the sanctuary of a deity, a street, and a public road must not be obstructed by (a place for) ordure, a terrace, a pit, an aqueduct, the edge of a thatch (syandanikâ), or the like (obstructions).
16. Should any one cause such obstruction through inadvertency or by force, the king shall impose on him a fine of the highest degree.
* 17. 17 The (erection of a) dike in the middle of another man's field is not a prohibited act, as it may be productive of considerable advantage, whereas the loss is trifling. That is to be desired as (comparative) gain where there is (a slight) loss (only).
* 18. 18 There are two sorts of dikes (or watercourses), one (called kheya) which is dug into the ground, and (another called bandhya) which prevents the access of water. A kheya dike serves the purpose of irrigation, a bandhya dike serves to keep the water off.
* 19. No grain is (ever produced) without water;
but too much water tends to spoil the grain. An inundation is as injurious (to growth) as a dearth of water.
* 20. 20 If a man were to put in repair a dike erected long ago, but decayed, without asking the permission of the owner, he shall not have (the use and) profits of it.
* 21. 21 However, after the death of the owner or of another man sprung from the same race (who has succeeded to his property), he may repair the dike, after having been authorized to do so by the king.
* 22. 22 By acting otherwise he will get into trouble, in the same way as the hunter (of the tale). The shafts of him are spent in vain who hits again and again one who has been hit already.
23. 23 When the owner of a field is unable (to cultivate it), or dead, or gone no one knows whither, any stranger who undertakes its cultivation unchecked (by the owner or others) shall be allowed to keep the produce.
* 24. 24 When the owner returns while the stranger
is engaged in cultivating the field, (the owner) shall recover his field, after having paid (to the cultivator) the whole expense incurred in tilling the waste.
25. 25 A deduction of an eighth part (shall be made), till seven years have elapsed. But when the eighth year arrives, (the owner) shall recover the field cultivated (by the other, as his independent property).
* 26. 26 A tract of land (which has not been under cultivation) for a year is called Ardhakhila (half-waste). That which has not been (under cultivation) for three years is called Khila (waste). That which has not been under cultivation for five years is no better than a forest.
27. A field which has been held by three generations in succession, and a house which has been inherited from an ancestor, cannot be estranged (from its legitimate owner) by force of possession, except when the king wills it so.
* 28. 28 When grain has been destroyed by cows or
other cattle crossing a fence, the herdsman deserves punishment in that case, unless he should have done his best to keep the cattle off.
* 29. 29 When grain has been destroyed (altogether), with the root, the owner of it may claim a corresponding quantity of grain (as damages); the herdsman shall be corporally punished; and on his master he shall impose a fine.
* 30. 30 A cow within ten days after her calving, a full grown bull, a horse, and an elephant shall be kept off carefully. The owner of any one out of these animals is not liable to punishment (should they do mischief).
* 31. 31 For (mischief done by) a cow he shall inflict a fine of one Mâsha; for (mischief done by) a female buffalo, two Mâshas; in the case of a goat or sheep (trespassing) with its young, the fine shall amount to half a Mâsha.
32. 32 The (owners of) elephants and horses shall not have to pay any fine; for they are looked upon as protectors of (the king's) subjects. Impunity is (likewise) granted to (the owner of) a strayed cow,
of one that has recently calved, and of one unmanageable.
33. 33 (As also to the owner of) one that has lost her way, or broken down, or stuck (in marshy ground), or (of) a bull marked with the sign of consecration. Four times (the amount of the damage done) is declared (to be the fine) in the case of (a cow) whose nostrils have been pierced and who abides in the field.
* 34. 34 When the cattle lie down in the field (after grazing), the fine to be inflicted shall be double; when they remain (in the field for the night), it shall be four times (the ordinary amount); when they graze in the sight (of the keeper), that man shall be punished even as a thief.
35. When cows, straying through the fault of
their keeper, have entered a field, no punishment shall be inflicted on the owner of the cows; the herdsman (alone) is punishable (for the damage done by them).
* 36. 36 When (a herdsman) has been seized by the king or (devoured) by an alligator, or struck by Indra's thunderbolt, or bitten by a serpent, or fallen from a tree,
* 37. 37 Or killed by a tiger or other (ferocious animal), or smitten by a disease of any sort, no offence can be imputed either to the herdsman or to the owner of the cattle.
* 38. 38 When a man claims damages for grain consumed by cattle (grazing in his field), that quantity of grain must be restored to him (by the owner of the cattle), which has been consumed in the field in the estimation of the neighbours.
* 39. 39 The cows shall be given up to their owner, and the grain to the husbandman. In the same way a fine shall be imposed on the herdsman when grain has been trodden down (by cows).
40. 40 When a field is situate on the borders of a village, or contiguous to a pasture ground, or adjacent to a high road, the herdsman is not reprehensible for the destruction of grain (in that field), if the field is not protected by a fence.
* 41. 41 On (that side of) the field which faces the road a fence shall be made over which a camel cannot look, nor cattle or horses jump, and which a boar cannot break through.
* 42. 42 A householder's house and his field are considered as the two fundaments of his existence. Therefore let not the king upset either of them; for that is the root of householders.
43. When his people are flourishing, the religious merit and the treasure of a king are sure to be in a flourishing state as well. When (the people) cease to prosper, (his merit and his treasure) are sure to abate as well. Therefore he must never lose sight of (that) cause of prosperity.
155:1 XI, 1. The meaning is as follows: 'A dike,' an embankment for the purposes of irrigation. 'A field,' a cultivated piece of ground (under water). 'A boundary,' a landmark. 'A tilled piece of ground,' cultivated soil. 'A waste,' uncultivated ground. When a decision has to be given in a quarrel with regard to any of these, it is called a lawsuit concerning landed property, or Boundary Dispute. Vîramitrodaya, p. 451.
155:2 Manu VIII, 259; Yâgñavalkya II, 150.
156:3 The foresters shall only be consulted in default of cultivators whose fields are adjacent to the boundaries of the village. Vîramitrodaya, p. 456. Manu VIII, 260. Yâgñavalkya II, 150.
156:4 4, 5. Manu VIII, 246-251; Yâgñavalkya II, 151.
156:7 Manu VIII, 263; Yâgñavalkya II, 153. The fine of the second degree consists of 500 Panas.
156:8 The lower degree of punishment in the case of the persons here mentioned seems to be due to the fact that they may be supposed to be interested in the suit.
157:9 According to the Vîramitrodaya (p. 458), this prohibition in regard to the determination of the boundary by a single man, has reference to those only who are not acceptable to both parties and unacquainted with the law.
157:10 Manu VIII, 256; Yâgñavalkya II, 152.
157:11 In default of neighbours and other persons conversant with the state of the matter, and of trees and other boundary marks, the king shall fix the boundary of his own accord. He shall distribute the ground intermediate between the two villages, which has become the subject of a contest, between the two litigant parties, and fix landmarks between the two. Vîramitrodaya, p. 460. Manu VIII, 265; Yâgñavalkya II, 153.
158:14 This rule seems to be intended principally for banyans and the like trees covering a large area with their offshoots. The Nepalese MS. omits vv. 13, 14, 16.
158:15 The term syandanikâ is variously explained as denoting either the projecting roof or the eaves of a house.
158:17 Yâgñavalkya II, 156.
158:18 Kheya means literally 'what is capable of being dug,' and bandhya 'what is capable of being stopped.' What is meant by these two terms may best be seen from the next paragraph.
159:20 With the owner's permission, any man may restore a dike, &c., which has fallen into decay. Vîramitrodaya, p. 468. Yâgñavalkya II, 157. Read pravrittam in the text.
159:21 The authority of the king is required, because, without it, the profits of the dike would have to be enjoyed by the king himself. See Yâgñavalkya II, 157.
159:22 The tertium comparationis in this simile has to be sought in the vanity of the effort only. Manu (IX, 73) applies the same simile to seed, i.e. semen virile spent in vain on the field, i.e. wife of a stranger.
159:23 'Unable' (to cultivate the field) through want of means. 'A field,' one which has become a desert. Vivâdakintâmani, p. 64.
159:24 'The owner,' or his son or other (descendant). 'The whole expense incurred in tilling the waste,' the cost of converting the desert into cultivated ground. Vîramitrodaya, pp. 469, 470.
160:25 It appears from an analogous text of Kâtyâyana that this rule is intended for those cases where the owner is unable to pay for the expense incurred by the cultivator. Kâtyâyana says, 'If through want of means (the owner) do not repay the expense entailed by the cultivation of the waste, the cultivator shall be allowed to keep the produce minus an eighth part. During eight years he may keep the (annual) produce (minus an eighth). After that period, it shall belong, to the proprietor.'
160:26 These definitions are inserted here, because the previous rules according to the commentators apply to a desert or forest only, the cultivation of which causes considerable difficulty and expense.
160:28 28-42. Nârada's eleventh title of law, though called 'Boundary Disputes,' is in reality a collection of all legal rules relating to fields. Manu and those who follow him treat the subject of damage done by cattle to crops or grass as a section of the chapter on 'Disputes between master and herdsman,' which title of law is wanting in the Nârada-smriti.
28. Gautama XII, 20.
161:29 The author of the Vîramitrodaya (p. 450) observes expressly that the term vadha denotes corporal punishment, and not execution, in this place. The other commentators agree with him. Manu VIII, 241; Yâgñavalkya II, 161; Gautama XII, 26; Vishnu V, 146. The Nepalese MS. omits this paragraph.
161:30 The reason why horses and elephants have to be kept off is given in paragraph 32. Horses and elephants were used for the purposes of war principally. Manu VIII, 242; Yâgñavalkya II, 163, &c.
161:31 Vishnu V, 140-144; Gautama XII, 22-25; Yâgñavalkya II, 159.
161:32 32, 33. Manu VIII, 242; Vishnu V, 150; Yâgñavalkya II, 163. The Nepalese MS. has 'a pregnant cow' for 'a strayed cow.'
162:33 The genuineness of this paragraph appears doubtful, because some of the propositions contained in it are nearly identical with the rules laid down in the paragraphs immediately preceding and following it. Besides, the language of this paragraph is obscure, and it is not given in any commentary nor in the Nepalese MS. The solemn ceremony of setting a bull at liberty and consecrating him to the gods, with a mark on each flank, is described by Vishnu, chapter LXXXVI, and in the Grihya-sûtras. Piercing the nostrils of a barren cow is mentioned as an offence by Manu VIII, 325. It does not become clear why damage done by a cow of this sort should be a greater offence than damage done by an ordinary cow.
162:34 'When they lie down in the field,' after having eaten their fill. 'When they remain,' when they spend the night in the field, after grazing. Vivâdakintâmani, Gagannâtha, &c. 'In the sight of the keeper:' thus according to Gagannâtha (Colebrooke's Digest, III, 4, 46). The correctness of his interpretation is confirmed by Yâgñavalkya II, 162. According to the Vivâdakintâmani (p. 67), the meaning is this, that the cattle are allowed to graze by the keeper, in the sight of the proprietor of the field, and in spite of the remonstrances of the latter. Vishnu V, 145; Yâgñavalkya II, 160, 162.
163:36 'Seized by the king,' employed in the king's business. See Colebrooke's Digest, III, 4, 52.
163:37 This paragraph is omitted in the Nepalese MS.
163:38 Gautama XII, 26; Manu VIII, 241; Yâgñavalkya II, 161. The Nepalese MS. inserts a spurious verse here, the first half of which is identical with Manu IX, 37, and the second half identical with Nârada XI, 22.
163:39 The meaning of the injunction to give up the cows seems to be this, that the owner of the cows shall not at once recover them, when they have been seized by the proprietor of the field, after doing damage in the field. The Vivâdakintâmani has a different reading of this clause: gavatram gominâ deyam. This is explained as meaning that 'blades of corn must be made good by the owner of cattle.' Similar readings are found in other commentaries as well. Âpastamba II, II, 28, 5.
164:40 'Pasture ground,' a meadow reserved for feeding cows or other cattle. Ratnâkara. See Colebrooke's Digest, III, 4, 27. Manu VIII, 238, 240; Vishnu V, 547, 148; Gautama XII, 21; Yâgñavalkya II, 162.
164:41 Manu VIII, 239.
164:42 This maxim shows that the compiler of the Nârada-smriti wrote for an essentially agricultural people.