Chapter XVII. Asvāmivikraya (sale by one not the owner)

Volume III pp. 462–466

Chapter XVII. Asvāmivikraya (sale by one not the owner)

ASVĀMIIVIKRAYA (sale by one not the owner).

The different modes of the sources of ownership have already been referred to (H. of Dh. vol. II, pp. 130 ff) and will be referred to again under dāyabhāga. According to Nār. VII. 1 and Br. (SBE vol. 33 p. 335 verse 2) when¹ a person, who holds an open deposit, a sealed deposit, an article bailed for delivery to another, stolen property, an article borrowed for some festival, a pledge, or property lost by a stranger and found (by him), sells it in secret (or behind the back of the owner) it is to be considered as a sale by one who is not the rightful owner. Vyāsa has a similar verse. The word 'sells' is only illustrative and includes gifts and pledgeṣ Similarly as most sales by one not the owner are clandestinely brought about, Br. employs the words 'in secret' but even if the sale is effected openly the same consequences may follow. The same rules will apply to an article lost by the owner and found by a stranger. Kāt. (612) provides² that a sale, gift, or pledge, made by one who is not the owner, should be rescinded (by the king or judge), Manu VIII. 199 and Nār. (q. by Sṃ C. II. p. 213, V. P. p. 291) and others say the same thing. Yaj. II, 168, Nār. VII. 2 provide that the owner is entitled to recover his property from the person that purchases from one who is not the owner. If the buyer purchases an article not in the open market, then he is liable for punishment; if he purchases from one who could have no means of possessing the thing sold (such as a slave without the master's consent) or for a very inadequate price or at a very unusual hour (at midnight or the like) or from bad characters then he is to be punished as a thief (Yāj. II. 168, Viṣṇu Dh. S. V. 166, Nār. VII. 3, Manu VIII. 202, Br. in SBE vol. 33 p. 336 verse 11). Such a sale is a fraudulent one. If the 'buyer purchases (through ignorance) in market overt from one who is not the owner, he incurs no blame (no punishment), but he may have to hand over the article to the real owner (Viṣṇu Dh. S. V 164-166 ).³ The purchaser from one not the real owner can free himself by producing the vendor (called mūla in Manu VIII. 202, Br. and Kāty.) and should not attempt to conceal from 'whom he came by the thing, otherwise he would be liable to be punished equally with the vendor as a thief (Nār. VII. 4). Br. (SBE 33 p. 335 verse 3), Manu VIII. 201 and Yāj. II. 170 say that when the vendor has been produced by the vendee, then the latter is not to be proceeded against, but the vendor has to litigate with the real owner who has lost his property and when the vendor loses the suit he has to pay the price to the buyer and a fine to the king and the owner gets his property back.⁴ If the vendor has gone abroad adequate time should be granted to the purchaser to produce him (Kāt. 615). The purchaser in order to escape blame (punishment) has to produce the vendor and if that cannot be done owing to the vendor's absence he has to prove that he purchased⁵ openly (Br. in SBE 33 p. 335 v. 4, Manu VIII. 202, Kāt. 615, 618-619). If he cannot do any of these two, then the purchaser would be liable to pay the price to the real owner as claimed and a fine to the king. Manu VIII. 198 prescribes that one who sells without being the owner but being a member of the owner's family should be fined 600 panas, while a vendor unconnected with the real owner's family should be dealt with as a thief. The same rule applies to a vendor selling another's article through ignorance or mistake and one doing so with full knowledge. The person who has lost a chattel and claims it from the finder is described as nāstha⁶ in Kaut III. 16, Manu VIII 202, Kāt. (614) and elsewhere, the word being derived from nakta ( what is lost ). The idea is that ,openly purchasing an article in the presence of a number of people for an adequate price negatives fraudulent intent and leads to the inference of a-purchase in good faith and such a purchaser even though he may have to part with the chattel to the real owner when the latter proves his title, incurs no blame and is entitled to recover from the vendor, if he has to surrender the article, the price paid by hiṃ When a person claims a lost article as his he has first to prove his title and possession by evidence-(such as that of his kinsmen or a document &c. ) and that he had not sold or, donated or abandoned it;⁷ after he has proved his title the purchaser is called upon to prove his purchase as honest by evidence i. e. by producing the vendor or by showing that he purchased openly and for adequate price (Kāt 613, Yāj. II.170). When this is done the purchaser escapes blame but has to surrender the article to the true owner. Kāt. (616) adds ⁸ that in the case of ‘asvāmī-vikraya’ no other means of proof whether divine or human (except the evidence of witnesses such as kinsmen ) is declared to be proper. Acc to the V. P p 293 other evidence and even ordeals may be admissible in sale without ownership, but the Sṃ C. p. 216 and the Madanaratna say that on account of the express’ words of Kāt. this is not possible. If the owner who alleges the loss of an article fails to prove his title and prior possession he has to pay a fine to the king equal to 1/8th of the price of the article. Kāt. (620) and Kaut. (III. 16) state that on failure to prove his title the person claiming ⁹ the article as his should be fined as a thief, in order to deter (others) from taking undue advantage (i. e. preferring false claims). Kaut ¹⁰ III. 16 and Yāj. II. 169 provide that when the real owner finds his lost article in the hands of a stranger he should get him apprehended by the royal officers (such as chauroddharaṇika, acc. to Mit.), but that if the owner thinks that much time will be lost or distance will have to be traversed (for going to officers) he should himself seize the person and bring him before the court. The Mit. explains that the buyer should have the seller arrested and, if the seller is dead or gone abroad, that he should hand over the article to the real owner. Where a purchase has been made in the midst of a row of traders to the knowledge of the king's officers, but from a vendor whose habitation was unknown or where (after the purchase) the vendor dies, the real owner (of the thing sold by one not the owner) will recover his own property after paying half the price to the purchaser, since the rule of justice in such a case so requires, because to purchase from one (whose habitation is) not known is a fault (in the purchaser) and not taking proper care (of one's goods) is also a fault in the real owner (Br. in S. B. E. vol. 33 pp. 335-36 verses 7-9 or Kāt 621-623)¹¹. Marīci (q. by Aparārka p. 775, Sṃ C. II. p. 217) has similar provisionṣ Br. (S. B. E. vol. 33 p. 335 verse¹² 6) provides that in a suit where there is no evidence the king shall take into consideration the character of the litigants and give a decision according as the credibility of the parties is equal, greater or lesṣ

As regards articles lost and found by the king's officers, vide above (pp. 175-176). SAMBHŪYA-SAMUTTHĀNA ⁸⁰¹

निमित्तैः पापरदृश्यं नहं लक्ष्ममापहृतं वा। विक्रीयतेऽस्वसाक्षी पाषिकोऽपरः परिकर्मणः नारद VII 1; निक्षेपोपानिधिसहस्रस्थापितं स्वफलंस्कानम्। उपेक्षु येन विकीतमससाक्षी सौमि पीर्वते॥ बृह q by स्मृतिच. II p 213 स्य, म p 290, पाचित्यानिहितस्य हस्ता धावन्त्य मदनरम् । निमीचते सारसम्पथे स सेयोऽस्वामीविक्रयः । व्यास q by स्य. म. । 195, स्य म. p 290. ↩
अस्वामीविक्रयं दानमाधिं च विनिवर्तयेत् । कात्या 612 q by the मिता. on II, 168, परा मा p. 291, वि ष्ट p 104. The स्य म p 291 takes अस्वामीविक्रयं as one word 'अस्वामिना कृते विक्रयम् । अस्वामिकृतं दानाधोरोप्यतिरिक्तमपि तरसाद्यै इत्यर्थः' while स्य म. p 195 says अस्वामिना is a separate word and an adverb. The latter had to explain in this way in order to directly connect the absence of ownership with all the three kinds of transactionṣ . ↩
अजानानात् प्रकाशे च. परद्रव्यं क्रीणीयात् तत्र तस्योपायः । स्वामी द्रव्यमाप्नु यात् । पथ्यकाहो हीनमूल्ये च क्रीणीयात्तदा क्रेता विक्रेता च चोरवत्कार्यौ । विष्णुधर्मसूत्र V. 164-166: अन्तरेंटे बहिग्रामाविशासनामृतो जनात् । हीनमूल्यं च यत्कीर्तयेन्रोसा- नुपयिकयः ॥ वृह q by स्व म. p. 291, वि. र. 107, परा 'मा III. 293. ↩
मूले समाहृते क्रेता नामिश्रोभ्यः कथनम् । मूलेन सह वादस्तु नाहिकस्य विधि- यते ॥ वृह q. by मिता. on या II 170, while परा मा. III. 295 and स्मृतिच० II p 215 attribute it to व्यास. विक्रेत्रा दर्शितो यत्र द्वीयते व्यवहारात: । क्रेत्रे राझे मूल्यदण्डो यदु- धात्स्वामिने धनम् ॥ वृह q. by परा. मा. III p. 295, स्मृतिच० II p 215. ↩
प्रकाशे यः क्रयं कुर्पांत्मूलं चापि समर्पयेत् । मूलानयनकालस्तु देयो योजन- संख्यया ॥ कात्या q by मिता. on या II. 170 (reads द्वेष्यस्नापसंख्याया), अपराकं असमाहार्थमूलस्तु क्रयमेव विशेषयेत् । विबोधितं क्रये राजा न प्रस्थापयन्मूलं क्रयं चाप्यविशोधयन् । यद्यधर्मेण धानेने धर्मं द्रव्ययो कुर्वते ख च सः ॥ कात्या. 618-619 q. by मिता. on या. II, 170, वि. र. pp. 106, 108, स्मृ. म. pp. 196-197. ↩
नहमम्वेते नाष्टिकः । नहमम्वार्यश्रीयेव उनि कृते महाविलाम्वार्पिकोडम् कर्तव्य । नहं प्रयोजनमस्येति वा । मेधा० on मनु VIII. 202 The sūtras referred to aro पाणिगनि V. 2 115, V 4 38 and V. 1 109. ↩
नाष्टिकस्तु प्रकृषींत सद्रूतं ज्ञातुमि स्वकम् । अबुबस्यविकींत कृत्वा स्म लभते धनम्। कात्या 614 q by अपराक p 777, बि र. p. 104 स पि p 306 ↩
प्रकाशं वा कयं कुर्याप्तानुभूमिज्ञांतिभि स्वकै । न तदान्या क्रिया मोक्ता दैविकों न च मानुषी। कात्या 616 q by अपराक p 717, परा सा 296, बि र. p 106 ↩
यदि त्व सौ कुरुते ज्ञानिभिर्मोक्षको धनम् । संक्षुष्टवद्वद्‌भोक्तृमात्मत्यति ॥ कात्या 620 q by अपराक p 777, बि र. p. 105, परा सा III p 297. ↩
नहमपहतमसाव स्वामी धर्मस्वेन धाययेत् । देशकालातिपत्ती चा स्वय शृणीतो- पहरेत् । अर्थशास्त्र III. 16. ↩
वणिग्बीथीपरिवित्ते विज्ञातं राजपुरुषैः। अविज्ञाताश्रयात् कीर्तितं विक्रेता यत्र वा मृतः। स्वामी तुस्यार्थमूल्यं तु प्रगृह्णीत स्वकं धनम् । अर्थे ह्योरपह्ते तत्र स्थापयेत यवहारत् । अविज्ञातक्रयो येषुमस्तथा चापिपालनम् । एतद् द्वयं समाख्यातं द्रव्यहानिकारैर्दुषैः "कुद्द., acc. to अपारर्क p 775, कुल्लूक on मनु VIII. 202 (the first two only), and कात्या acc. to स्मृतिच II. pp. 216-217, परा. पा III pp 297 and 300, स. प्र pp 295-296. Law helps the vigilant. The rules under 'asvāmivikraya' are based on the doctrine that no one can confer a better title to the goods sold than he himself has (vide section 27 of the Indian Sale of Goods Act IX of 1930). The verses recognise an exception in cases where both purchaser and the real owner are equally at fault. ↩
प्रमाणादीनभावे तु युक्तापेक्षेषां नृपः । संग्न्यूनगधिकत्वेन स्वयं कुर्वीतनिर्णयम् ॥ वृह. q. by स्मृतिच II. p. 216, वि. र. p. 108. . ↩

Chapter XVI. Contracts Chapter XVIII. Sambhūya-samutthāna (A joint undertaking, partnership)