Hindu Law and Judicature Part 5

80. Although proof has been given by witnesses, yet, if others of more distinguished qualities or in number twice as many give opposite testimony, the first witnesses should be held as false ones.

81. As well they who suborn as they who give false testimony are to be severally fined in double the value of the suit:[159] a brahma?, in such case, shall be banished.[160]

82. [The witness] who, after he has been addressed[161] [by the judge, yet] being blinded by pa.s.sion, withholds his testimony,--he shall pay eight times the [ordinary] fine: in case of a brahma?, he shall suffer banishment.[162]

83. Should it happen that the testimony of a witness must occasion the death of a person, whatever the cast of the latter,--the witness shall, in such case, speak untruth.[163] For their purification [after giving such false testimony] the twice-born must make oblation to SARASWATI.[164]

84. If any settlement have been mutually come to [between debtor and creditor], a written instrument should be drawn up before witnesses, the first mention being of the creditor.

85. In it should be written the date, _viz._ year, month, half month, day, also the name, cast, family, the Veda-school, and father's name, of each party, &c.[165]

86. This being completed, the debtor shall subscribe with his signature [a declaration, as follows]:--"What is written above, I, the son of such an one, agree to."

87. Then the witnesses, all being equal in grade, shall, after their fathers' names, write, with their own hands respectively: "I, such an one, am a witness."

88. And the writer shall subscribe at the foot, as follows:--"This has been written, at the request of both parties, by me, such an one, the son of such an one."

89. An instrument, entirely in the handwriting of the party, is to be received as proof, although it be not witnessed, unless procured by violence or by fraud.[166]

90. Payment of a debt incurred upon a writing, is obligatory only upon the debtor, his son, and grand-son;[167] but a pledge shall remain in use so long as the debt is unpaid.

91. If the instrument be in a foreign country, be illegibly written, be destroyed, faded, stolen, mutilated, burned, or torn, [the Court]

shall direct a new one to be made.

92. The authenticity of a written instrument which is doubtful, is to be ascertained by [comparison with other] doc.u.ments in the handwriting of the party &c.,[168] by [enquiry into] the probability of its having been obtained,[169] and [the mode of] its preparation, by [observation of] any marks, by [enquiry of] the relation [in which the parties stand to each other], and how the matter came about.

93. As often as the debtor makes a payment, either he shall write an indors.e.m.e.nt to that effect on the doc.u.ment, or the creditor shall give a receipt under his hand.

94. When the debt is paid, [the debtor] shall cause the doc.u.ment to be torn up, or shall have another prepared, _viz._ of discharge. If the debt was incurred before witnesses, its payment should also be before witnesses.[170]

95. The scales, fire, water, poison, the sacred draught--these are the ordeals for exculpation,[171] in case of grave accusations, if the accuser be prepared to pay a fine.

96. When it is agreed on; one of the parties shall perform [the ordeal], the other be in readiness to pay the fine. Even without a fine, there shall be trial by ordeal in case of treason or great crime.

97. [The accused,] being summoned, shall, after bathing at sunrise and fasting, be made to go through the several ordeals, in presence of the monarch and the brahma?s.

98. The scales are [the ordeal] for women, children, aged men, the blind, the lame, brahma?s, and those afflicted with disease. Fire or water, or the seven barleycorns' weight of poison are [the ordeal]

for a Sudra.

99. For a less value than a thousand _pa?as_, one shall not go through the ordeal of the [heated] iron plough-share, of poison, or of the scales: but in case of offence against the monarch or great crime, purifications[172] shall always be gone through.

100. When the accused has been placed in the scales by those who understand the art of weighing, a counter-weight adjusted, and a line drawn, he is then to be taken out [of the scales.]

101. "O scales! made by the G.o.ds, of old, the abode of truth: therefore do ye, propitious ones, declare the truth and liberate me from suspicion!

102. If I be an evil-doer, then bear me down, oh mother! If I be pure, carry me upwards!" Thus shall he [who is to go through the ordeal]

invoke the scales.

103. The hands [of the accused] shall be inspected when rice has been rubbed in them; after which, seven leaves of the Indian fig tree are to be placed therein [_scil._ in his hands] and fastened round successively with a thread.

104. "Thou, O fire, dwellest in all created things! O purifier, in testimony of innocence and guilt, do thou, in my hand, make known the truth!"

105. When he [who suffers the ordeal] has thus spoken, let a smooth red hot iron ball, of fifty _palas_ weight, be placed upon both his hands.

106. Carrying this, let him slowly walk across seven circles, of sixteen fingers breadth diameter each, with an interval of the same measure between each.

107. If, having thrown down the fireball, and being [again] rubbed with rice, he [the accused] is unburnt, his purification is accomplished. Should the ball during [the trial] fall down, or should there be any doubt, he is to take [it] again.

108. "By the power of truth, O Varu?a,[173] save me!" Thus invoking the water, and grasping the thighs of a man standing in water up to his navel, let him [who goes through this ordeal] submerge himself.

109. An arrow at the same instant shot [from the bow] a swift footed-man shall [run and] fetch: should he, upon his return, see that the body [of the accused] is still submerged, the latter is to be exculpated.

110. "Thou, O poison, Brahma's[174] son, art ordained for truth and right; free me from the accusation, and be to me, by the power of truth, a draught of immortality!"

111. Thus speaking, he shall eat of poison produced by the Sringa tree, of the Himalaya. Whoever is able to digest this without evil effect, shall be declared innocent.

112. Let the judge, adoring terrible deities, and taking of the water in which [their images] have been bathed, adjure it, and cause [the accused] to drink off three times the contents of his palms.

113. He to whom, within fourteen days from this [ordeal], no great calamity happens, either from the monarch or by act of G.o.d, shall without doubt be [held] guiltless.

114. A father when making part.i.tion [of his property], can divide it among his sons as he pleases; either giving to the eldest the best share or in such wise that all share equally.[175]

115. If he give equal shares, such of his wives as have not received _stridhana_ from their husband or father-in-law shall also equally share.[176]

116. If one have means, and do not desire [to share in the paternal estate], he shall be separated, something trifling being given to him.[177] A distribution by a father in smaller or larger shares, if in accordance with the Sastras, is lawful.[178]

117. After decease of the parents, let the sons make equal division of the property and of the debts.[179] And so the daughters, of what is left of the mother's [_stridhana_], after [paying] her debts; and, if there be no daughters, the sons or others of the family [being heirs, take it].

118. What has been self-acquired by any one, as an increment, without diminis.h.i.+ng the paternal estate, likewise a gift from a friend or a marriage-gift, does not belong to the coheirs.[180]

119. If one have recovered ancestral property which had been purloined, he has not to give it up to the coheirs;[181] nor shall a man share the earnings of science.[182]

120. If however the common property be augmented, equal division is enjoined.[183] In making division among several grandsons, regard should be had to the respective [portions of their deceased] fathers;

121. inasmuch as the owners.h.i.+p of father and son is co-equal in the acquisitions of the grandfather, whether land, any settled income, or moveables.

122. If a son be born of a wife of equal cast, after part.i.tion made, he is to share; or a share may be allotted him from the estate as it is, after allowing for income and expenditure.[184]

123. Whatever property may be given by the parents to any child, shall belong to that child. If part.i.tion be made after the father's death, the mother shall also have an equal share.[185]

124. Those of the brothers whose ritual ceremonies have not been accomplished, shall have them completed by the others whose ritual is gone through: so in like manner as to the ritual of sisters, [each of the brethren] devoting a fourth part of his share.[186]

125. The sons of a brahma?, shall receive, according to their [mother's] cast, four parts, or three, or two, or one: the sons of a kshattriya [in like manner], three, or two, or one: and the sons of a vaisya, two, or one.[187]

126. Whatever, after part.i.tion has taken place, may be discovered to have been wrongly appropriated by one of the sharers,[188] shall be equally divided among them all: this is enjoined.

127. A son begotten by one who is without male issue, in obedience to precept,[189] upon another man's wife, becomes by law heir to both, and presents the death-oblations of both.[190]

128. (I) "An _aurasa_[191] son," is one born of a _dharma_[192] wife; equal with him is