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
* 135. 135 Documents should be known to be of two sorts: (the first), in the handwriting of the party himself;
[paragraph continues] (the second), in that of another person, (the former being valid) without subscribing witnesses, the latter requiring to be attested. The validity of both depends on local usage.
* 136. 136 That document is said to be valid which is not adverse to the custom of the country, the contents of which answer to the rules regarding pledges and other kinds of security), and which is consistent in import and language.
* 137. 137 That document is invalid which has been executed by a person intoxicated, by one charged (with a crime), by a woman, or by a child, and that which has been caused to be written by forcible means, by intimidation, or by deception.
138. 138 A bond ceases to be valid in that case also, if the witnesses, creditor, debtor, and scribe be dead,
unless its validity can be established by the existence of a pledge.
* 139. 139 Pledges are declared to be of two kinds, movable and immovable pledges; both are valid when there is (actual) enjoyment, and not otherwise.
* 140. 140 If a document has been produced in due time, if (the demand recorded in it) has been (repeatedly) urged, and (publicly) proclaimed, it remains valid for ever, even after the death of the witnesses.
141. 141 A document which is unknown and has never been heard of before does not obtain validity when it is brought forward, even though the witnesses be living.
* 142. 142 When a document has been transferred
into another country, or burnt, or badly written, or stolen, a delay must be granted, in case it should exist still; if it be no longer in existence, the evidence of those who have seen it decides the matter.
143. 143 If a doubt should subsist, as to whether a certain document be authentic or fabricated, its authenticity has to be established by examining the handwriting (of the party), the tenour of the document, peculiar marks, circumstantial evidence, and the probabilities of the case.
* 144. 144 If a document is signed by a stranger and
meant for a different purpose, it has to be examined, in case its genuineness should be suspected, by inquiring into the connexion (previously existing between the two parties) and into the (probability of) title, and by resorting to reasonable inference.
145. 145 An (obligation which has been stated in) writing can only be annulled by (another) writing, and an attested bond by witnesses. A writing is superior to witnesses; witnesses are not superior to a writing.
* 146. 146 If a document is split, or torn, or stolen, or effaced, or lost, or badly written, another document has to be executed. This is the rule regarding documents.
75:135 A document in the handwriting of the party himself has the advantage of being valid without subscribing witnesses. The custom p. 76 of the country, i.e. the usages prevailing in each country with regard to the validity of documents, is supreme. A. Vishnu VII, 1-5; Yâgñavalkya II, 84-88.
76:136 I have translated the reading vyaktâdhividhilakshanam. That writing is not adverse to the custom of the country which does not record an invalid gift, or a disposition in regard to a minor, &c. If the contents of a document are in accordance with the rules regarding pledges, sureties, &c., and if its import and language is free from obscurity and breaks, it is valid. A. Vishnu VII, 11.
76:137 What has been written by one intoxicated, or charged with the murder of a Brahman or other heavy crime, or by a woman or child; what has been caused to be written by forcible means, the writer not being concerned in the subject matter; and what has been written by one intimidated, or under a delusion; all such documents are invalid. A. Vishnu VII, 6-10; Yâgñavalkya II, 89.
76:138 The invalidity of those documents, where the creditor, debtor, witnesses, and writer are all dead, is declared for that reason, because such documents may be suspected of forgery. Even after the actual death of all those persons, however, a document retains its validity, where a pledge is in existence and in the possession of the creditor. A.
77:139 A pledge which is only mentioned in a document, without being actually enjoyed, has no legal validity. A.
77:140 A document or bond which the descendants of the creditor have repeatedly shown to the descendants of the debtor whenever interest was due (prârthitam), or which they have again and again read out, retains its validity for the respective descendants of the creditor and debtor, even after the death of the witnesses and all other persons concerned. A. I have translated the term prârthitam as an independent clause.
77:141 A document or bond, the contents of which are unknown to the descendants of the debtor, about which they have never heard from their ancestors, and which has been suddenly presented to them only in a business transaction, is not considered valid, even though the witnesses be living. A.
77:142 This rule is equally applicable to a plaintiff and to a defendant in a lawsuit. 1. If a creditor suing a debtor is unable to produce the bond on demand, the judge shall give him time to search for it. If the bond has been destroyed by fire or by some other accident, the fact of its former existence may be established by the testimony of honest persons, who have acted as scribe or as subscribing witnesses, or who happened to be present while the bond was being executed. The statements of such persons are equally decisive where the marks or part of the writing in a document has been obliterated. 2. A debtor having been asked in p. 78 court to discharge a certain debt, on the strength of a bond signed by himself, says: 'It is true. I had written that document. However, the money was not handed over to me, and I omitted to cause the document to be torn, because it did not happen to be at hand. A few days later the father of my would-be creditor informed me that he had lost the bond and could not find it anywhere; that, however, he was going to give me a written deed recording its loss. So he actually did, and I have deposited that written deed in a certain box while living in that house.' If the debtor pleads an excuse of this sort, he must be allowed some delay to search for the document in question. If it is no longer in existence, the statements of those who saw it shall decide the matter. A.
78:143 'The handwriting,' another specimen of the handwriting of the party. 'The tenour of the document,' the names of the subscribing witnesses. 'Peculiar marks,' flourishes in the handwriting of the scribe. 'Circumstantial evidence,' 'these two facts go together,' or 'they do not go together.' 'The probabilities of the case,' 'how has he got hold of this document?' or 'is he nervous or is his manner of speaking composed and quiet?' By such expedients as these shall doubts regarding the genuineness of a document be removed. A. Vishnu VII, 12; Yâgñavalkya II, 92.
78:144 If a document has passed by purchase or acceptance from the original owner, who signed it, into the possession of a stranger, who claims the loan recorded in it from the debtor, the judge must examine the document. Kalyânabhatta has composed three verses in explanation of the technical terms âgama, sambandha, and hetu. Sambandha, 'connexion,' according to him, may be founded on descent, caste, marriage, friendship, and social intercourse. p. 79 Âgama, 'a title,' may be founded on inheritance, purchase, mortgaging, seizure, friendship, and acquisition. Hetu, 'reasonable inference,' may be founded on reasoning and an efficient cause. A. For other explanations of the terms âgama and hetu in an analogous passage of Yâgñavalkya (II, 92), see the Mitâksharâ. The Mayûkha agrees with Kalyânabhatta.
79:145 If the debtor states that he has paid the debt, he must be able to produce an acquittance in the creditor's handwriting. In the same way, if the creditor pleads that the bond has been stolen, or lost, or burnt, &c., he must produce a certificate from the debtor stating its loss. Where, however, the bond was attested by subscribing witnesses, the debt has to be discharged in the presence of the same witnesses. A.
79:146 Where a document has met with any one out of the divers accidents mentioned in this paragraph, the party by whom it was executed may be compelled to give another document instead of it. Yâgñavalkya II, 91. Here ends the chapter on documents, the eighth section of the law of debt. A.