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Published online by Cambridge University Press: 24 December 2009
One of the most important problems faced by the administration in the early days of British rule in India was how to ascertain and distinguish the different types of land-tenure prevalent there. It was obvious that a great variety of rights existed by custom in respect of land, and when the government proposed to collect revenue it was essential to know from which party or parties it could be expected and in what manner and proportions it should be levied. The task was completed by elaborate local inquiries, but very little help was anticipated or received from legal textbooks in Sanskrit, which might have been expected to provide information upon so obviously fundamental a subject. But here and there details which throw light upon medieval practices are to be found in the books, and these seem to connect tolerably well with the results of the inquiries made during the nineteenth century. An instance of this seems worthy of quoting, not merely for its comparative rarity and for the juristic skill exhibited by the author, but chiefly because of the intrinsic interest of one of the tenures in question, which has a high curiosity-value and is probably of a species confined to India.
page 61 note 1 An example of the fruits of such work may be seen in Brown, C.P., Three treatises on Mirāsi right, Madras, 1852.Google Scholar
page 61 note 2 Kane, P.V., History of dharmaśāstra, I, Poona, 1930, 410–14;Google Scholar on the true authorship of the work see further Gode, P.K., Studies in Indian literary history, I, Bombay, 1953, 423Google Scholar and seqq.
page 61 note 3 A rapid comparison will reveal the orthographically minor corrections; but it is necessary to place on record that the learned editor prints without comment at p. 282,1. 15, the following corresponding to a part of the third sentence of the second paragraph of the extract given next): nivrttau pravṛrttāyāṃ gururabhyuddheyaḥ pravayāḥ pratyuddheya ityādyuyanītadharmāṇāṃ …
page 61 note 4 A prohibition laid down by Bṛhaspati, quoted ibid., 277.
page 62 note 1 This is the view attributed to Laksmldhara and others by the Sarasvatī-vilāsa, ibid., 281.
page 62 note 2 The word is plainly Dravidian. Tamil has kuttakai ‘lease’, ‘rent’; Mr. J. R. Marr kindly ound an instance in classical Tamil where a grove was leased as a shrine. Compare the Tehigu gutta in the same senses; in Kannaḍa guttā is given by Kittel (correcting Wilson's, gutta: A glossary of revenue and judicial terms … by H. H. Wilson …, London, 1855, 191)Google Scholar in the sense of guttige ‘farm’, ‘monopoly’, while guttige was used in medieval times to mean ‘assessment’ upon a land-holder, and is given by Kittel as meaning, in addition to the above, ‘rental on land’. For the initial voiced plosive see Burrow, , Dravidian studies I, BSOAS, IX, 3, 1938, 711CrossRefGoogle Scholar and seqq. Compare the Kannaḍa form gutte and the Marāṭhī guttā and gutā (Wilson, ubi cit.): s this Kannaḍa form a back-formation from Marāṭhī? Malayālam has kuttaka and kuttata according to Wilson, op. cit., 305. Gundert gives meanings suggesting ‘monopoly’. The conviction that the word is Dravidian is by no means diminished by the possibility of the Nēpālī guṭhi (Turner, Nēpālī dictionary, 143) being ultimately derived from the same source (see p. 68, n. 1 below). The Hindī Śabdasāgar, I, 1916,Google Scholar gives as a dialectical word guttā, which appears identical with the Marāṭhī word in the senses of ‘a leasing of land’ and ‘rent’; while Platts (Dictionary of Urdū, classical Hindī and English, 1884) adds the meanings ‘monopoly’, ‘contract’, and ‘farm’. He suggests a derivation from the Skt. root grath. So far the sense of ‘lease’ or ‘rent’ heavily predominates, with a distinct revenue context, which might, of course, be a secondary development. More interesting and more relevant perhaps may be the material in Oḍiyā. Praharaj, G.C. (Pūrṇṇachandra Orḍiā Bhāshākosha, II, 1932)Google Scholar gives kuta: ‘appraisement of the produce of a field, tree, or tank’; kuta (or gutā) debā/nebā: ‘to give/take a lease of a land or tree under a system of appraisement’. It might seem probable that whereas the element of contract or lease now or until recently predominated, in Āndhra-Orissa of the sixteenth century the word kuttā evoked primarily the notion of offering and assuming a future responsibility after appraising the probable income from the land demised.
page 63 note 1 Mortgage (ādhi) could be of two principal sorts, gopya ‘to be kept’ and bhogya ‘to be enjoyed’. In the case of the former the land was lost to the owner if he did not repay the amount borrowed with interest at the stipulated time, if any, and the mortgagee had no right over the income from the land unless this were specially stipulated. See also below, p. 76, n. 1. In the case of the latter no interest had to be paid, since the creditor took the profits of the land in lieu of interest. See Kane, op. cit., III, Poona, 1946, 427 and seqq. Kane does not deal with this kuttā. Assuming for argument's sake that the transfer of land in the kuttā is in the nature of a pledge, and thus only an alienation of a subordinate interest in the soil, one may inquire how it might conceivably enter within the definition either of gopya or bhogya. The incidents of the tenure as we are told them point rather to the latter type than to the former, but the true bhogyādhi was connected with an advance in cash to the owner, and could be terminated upon his tendering the same amount at or after an appropriate interval: neither feature is present here. But since the transfer was connected with the transferee's promise, and the transferor impliedly promised not to resume the property so long as the transferee did not repudiate his obligations, the element of pledge might well be thought to be present.
page 64 note 1 The reason given for suggesting that the kuttā is a kind of pledge or mortgage is that the tenant's tenure consists in his right to take a profit. One might object that in gift also the donee is expected to ‘make a profit’. But what our author means is that the tenant has undertaken to pay out, and is induced to do so by the chance of ‘making a profit’, just as a moneylender will accept a mortgage when there is a high probability of his earning thereby.
page 64 note 2 This has already been discussed in the Sar. vil. at pp. 221 and seqq.
page 64 note 3 The party who advances money: if the mortgage he takes is a bhogyādhi it follows that all the profits are his in any event; but even if it be a gopyādhi any increase in value of the mortgaged land accrues to the creditor-mortgagee should the owner fail to repay the loan with interest. In the kuttā the party who is here called the debtor is the tenant, who has undertaken to make payments after the original owner's death.
page 64 note 4 The tenant takes the land as a security (if at all) for his reimbursement, having in view a more or less heavy expenditure on the owner's death. Who can release this security ? After all, the duties which he engages to perform do not terminate during his own lifetime—and the question whether his heirs have to continue the religious rites indefinitely is left open. If we inquire whether the heirs of the original owner (if they can be traced) can settle with the tenant and redeem the land, we must be met with the answer that the original contract is broken thereby, and in fact the practical difficulty of making such a settlement is nearly insuperable.
page 64 note 5 See for example Lakṡmīdhara, , Kṛtya-kalpataru, Brahmacāri-kāṇḍa, Baroda, 1948, 188,Google Scholar 192.
page 65 note 1 The objector's argument (which is acceptable so far as it goes) is ingenious. He says in effect, ‘I agree that the security is incapable of release, but what of that ? The situation of your tenant, whose duties arise potentially from the moment of the transfer and, when they materialize, go on for the rest of his life, is not unlike that of a Brahman boy who has received the sacred thread. The latter acquires at a definite point of time a set of duties which gradually unfold, and which he could neitner come to know nor be burdened with until then. He can never be released from these duties, some of which are irksome or irrational, since they depend from the status which he voluntarily acquired at his initiation. But his duties are none the less of the nature of obligations, and the relation between the guru and his upanīta is (at any rate in theory) one of reciprocal and permanent indebtedness: the guru must teach the Veda to the pupil and even when he has finished this task his relationship lasts for the rest of their lives and even beyond those limits. So with the tenant-in-kuttā’. It is argued that the tenant's relation to the owner is none the less that of debtor and creditor for the impossibility of the ‘security's’ being released.
page 65 note 2 The quotation is really a syncope of Nārada, VII, 2: Dharma-kośa, Vyavahāra-kāṇḍa, Wai, 1938, 798a; qu. Sar. vil, 277, as from Manu.
page 65 note 3 iti rahasyaṃ: one should resist the temptation to translate: ‘So says the Rahasya’, for no work of that name likely to have a bearing on the subject is known to have been available at this period. The Hindu law of gifts did not hesitate (as did the Islamic law) to contemplate gifts subject to a condition, and the gift of an absolute estate subject to a defeasance clause was perfectly valid: there is a splendid example in Corpus Inscriptionum Indicarum, III, ed. Fleet, J.F., London, 1888, 235,Google Scholar and see also Pulamuthu Pillai v. Azhaku Pillai, (1930) 46 Travancore L.R. 227.
page 66 note 1 That such duties still weigh heavily upon the minds of those who anticipate dying without close relatives to follow them is proved by the facts in Lekshmi Pillai Karthiyayani Pillai v. Narayani Pillai Easwari Pillai, A.I.R. 1955 NUC (Travancore-Cochin) 3482, a case which is of peculiar value in our present context. The tenant-in-kuttā was plainly not adopted, or the whole transaction would have been pointless, but that there was some kind of customary adoption (i.e. not legal in the śāstric sense) in such cases cannot be ruled out. Reference may also be made to Gopinath Shetty v. Santhamma, [1956] 2 M.L.J. 38.
page 66 note 2 For an instance of a deed of gift partly in consideration of past services and partly to secure payment of debts and maintenance of the donor in the Kandyan Provinces in 1872 see Kandy D.C. No. 70480 in Perera, J.M., A collection of select decisions of the Supreme Court on points of Kandyan law …, II, Colombo, 1892, 91–2.Google Scholar
page 66 note 3 Perhaps the best example is the mortgage known as Peruverthom described in Aiyar, C. Ramachandra, A manual of Malabar law …, Madras, 1883, at pp. 38,Google Scholar 136; but compare the perpetual lease (see ch. VIII of the same work) and the mortgage known as Jemmpanayom (see ibid., 38, 138).
page 67 note 1 Material on this subject may be sought in C. Ramachandra Aiyar, op. cit., in chh. VI and VII, where kānam, and Oṟṟi (otherwise otti), the two basic types of mortgage are investigated, followed by a discussion of kuzhi-kānam, kuṭṭi-kānam, and verumpattom leases. Patel, G.D., The Indian land problem and legislation, Bombay, 1954,Google Scholar deals with the subject briefly at pp. 313 and 345 and seqq. See also Mayer, A.C., Land and society in Malabar, Oxford, 1952,Google Scholar ch. 4. On the otti in Ceylon see Tambiah, H.W., The laws and customs of the Tamils of Jaffna, Colombo, 1950,Google Scholar ch. XX, and the same author's The laws and customs of the Tamils of Ceylon, Colombo, 1954, 48Google Scholar and seqq., 71. On the position at Kandyan law see Hayley, F.W., A treatise on the laws and customs of the Sinhalese …, Colombo, 1923, 503Google Scholar and seqq. For a modern investigation of the legal implications of the various types of mortgage in Malabar see N. K. Bajaraja Varman Thirumalpad v. K. K. Krishnan Nair, [1956] 2 M.L.J. 46. Distinguish ‘mortgage by lease’.
page 68 note 1 Professor J. Brough has kindly drawn to the author's attention the institution known in Nāpālī as guṭthi and in Nēwārī as guthi which, to his knowledge amongst the Nēwārs at any rate, enables land to be ‘tied-up’ (perhaps as some sort of fideicommissum) for generations amongst the settlor's descendants in order that its income might be exclusively devoted to defraying the cost of ṡrāddhas and other religious ceremonies in which the settlor would have a vicarious interest. That this institution has some ulterior similarity with the kuttā cannot be denied.
page 68 note 2 See above, p. 62, n. 2.
page 69 note 1 These passages, buried in parts of the digest where few would expect to find them, were pointed out to the present writer by his pupil, Mr. P. W. Rege.
page 69 note 2 The passages were reprinted in the Dharmākośa, ubi cit., 107–9 under the unlikely heading of darṡanopakrama. This reprint, which falls far below the standard of caution and supervision commonly used in that publication when selecting published and unpublished śāstric material for inclusion, bears all the mistakes, large and small, of the Mysore edition and actually adds, through mistaken zeal, a couple more of its own. The present writer hopes that the text which he prints below avoids the difficulties raised by these defective copies, but he cannot certify that the original text of the Sarasvatī-vilāsa has been definitively restored.
page 69 note 3 A mutilated copy of a Manu-śāstra-vivaraṇa by Ṛjuvimala (alias Bhāruci) was identified by the late Dr. T. R. Chintamani and has been acquired for eventual publication by the present writer.
page 69 note 4 Vijñāneśvara quotes Gautama as saying that Property is taken by birth; no one, not even in the seventeenth century in Bengal, could trace the original, and it is always cited as ‘Gautama, in Vijñāneśvara’. The Sar. vil. refers to Gautama on p. 277 to the effect that improper gifts fail to create Property: the sūtra he quotes cannot be found either in Maskari or in Haradatta. Yet both of these were Southern authors, and Maskari is very old, being quoted Viśvarūpa. Per contra for Gautama's text utpattyaiva cf. Medh. on M, IX, 156.
page 70 note 1 This is the view which Kane accepts: op. cit., I, 70, n. 118; 266.
page 71note 1 On the different sorts of attachment the Sar. vil. has spoken on p. 160. Kane, op. cit., III, 290–2, gives an account of the institution with references. Neither the Sar. vil. itself nor its most substantial Southern predecessor, the Smṛti-candrikā (ed. Gharpure, Bombay, 1918, II, 29–31),Google Scholar speaks of likhitāsedha, literally ‘written attachment’. It is not impossible that the word means ‘attachment of the kinds detailed in Nārada, I, 48 ’, but the likelihood that it means attachment by a written notice not to depart out of the village, not to dispose of the property, and so on seems on the whole greater. Vāeaspati-miśra, , Vyavdhāra-ciritāmaṇi, ed. and trans. Rocher, L., Rocher, L.Ghent, 1956Google Scholar, is most disappointing on this subject.
page 72 note 1 Not traced in Maskari's or Hardatta's versions of Gautama.
page 72 note 2 Who this is is uncertain. It may well be Bhāruci (though not in his work on Manu), or possibly Halāyudha ?
page 72 note 3 Otherwise the expression might mean nothing more than that a kauttika could attach.
page 72 note 4 One must resist the temptation to translate kuttā-pradātā (= uttarna, we are told) ‘landlord’, and kauttika ‘tenant’. Whereas the latter would not be strikingly inaccurate, as the rights of a kauttika are undoubtedly those of a tenancy of a sort or sorts, the owner or demisor may be of wider kinds than are indicated by the English word ‘landlord’. On the whole, while the general discussion may employ the English words in a non-technical sense, it seems better in the translation of our source to remain as close to the apparent sense as possible. The ‘author of the Digest’ glossed kauttika as kuttā-jīvikaḥ and Bhāruci (see below) as kuttōpajīvī; these are synonymous, meaning ‘one who derives his living from a kuttā’.
page 74 note 1 Documents were valued as evidence in disputes concerning debts or title to land or grants of income. Naturally if the transfer was itself of an impossible or illegal character the evidence was worthless.
page 74 note 2 Manu, x, 115. Gautama's text next referred to is x, 39–42, and the phrase ‘so on’ stands for ‘conquest’. Both texts are accompanied by exhaustive and varied commentaries in the Dharma-kośa, ubi cit., 1122 and seqq.
page 74 note 3 His text is not cited independently in the Dharma-kośa, in Lakṡmīdhara's Gṛhastha-kāṇḍa (where one might well expect to find it), in the Vyavahāra-nirṇaya, the Smṛti-candrikā, or the Vīramitrodaya; but the Sar. vil. refers to a view of his on exchange on p. 314 (also 319). It is clear from the many quotations in the Vyavahāra-nirṇaya that Bharadvāja or Bhāradvāja was known as the author of a verse work on vyavahāra, which may well have been composed comparatively late.
page 75 note 1 Nārada, I, 87, discussed in the Vyavahāra-cintāmaṇi at § 462.
page 75 note 2 Bṛhaspati-smṛti, ed. Aiyangar, Rangaswami, Baroda, 1941, VII, 30.Google Scholar The learned editor prefers bhuktiḥ to bhūmi, and sidhyati nānyathā instead of siddhim avāpnuyāt in the second half of the śloka, following the reading in the Smṛti-candrikā, ubi cit., 70. There is no material difference in the sense rendered.
page 75 note 3 The text is quoted in this form as Vyāsa's in the Vyavahāra-cintāmaṇi at § 452, and is there referred to Vyāsa, ed. Jolly, 1881,1, 84. But the Mysore edition of the Sar. vil. prints vicchedoparavojjhitaḥ, and there may have been some confusion with a text attributed to Pitāmaha in the Smṛti-candrikā, ubi cit., 70, which reads cāvicchinnāparavojjhitā (the line commencing sāgamā) and concludes the śloka with bhuktiḥ pañcavidhā smṛtā. However our text is attributed to Vyāsa and/or Kātyāyana and even Nārada in the form printed here: see Dharma-kośa, Vyavahārakāṇḍa, 406b, 416b, and cf. 420b, 419a.
page 75 note 4 paribhāṡā. This has been translated here sometimes ‘contractual term’ and sometimes ‘legal term’. In the first passage the word pāribhāṡika is used, as an adjective governing vyavahāra. In this passage again we find pāribhāṡika-dravya. Monier-Williams does not give this meaning of paribhāṡā, though the meanings given for pāribhāṡika may be said almost to cover what is required. In Nīlakaṇṭha-bhaṭṭa's Vyavahāra-mayūkha we have the now famous distinction between pāribhāṡika- and apāribhāṇika-strādhana. paribhāṡā in this sort of context means a term by reason of which a particular legal right can be predicated, particularly (though by no means necessarily) if it is created by agreement; pāribhāṡika means ‘having such a term as its characteristic’, or ‘in accordance with such a term’. In Nīlakaṇṭha's case the meaning is that the first class of strīdhana is that strictly marked out by the text of Kātyāyana. The word for ‘contract’ is not paribhāṡā but samaya, ‘the meeting of two minds’, as Anglo-American jurists would say, or saṃpratipatti, or saṃvid.
page 76 note 1 Yājñavalkya, II, 58. This is well commented upon by Vijñāneśvara. It is clear even from the smṛti that it is only a gopyādhi (see above, p. 63, n. 1) that can be foreclosed in this manner. In the case of a usufructuary pledge, on the other hand, the rule is (Yājñ, II, 64) that after the income in the mortgagee's hands has reached double the amount of the loan, the mortgagee's right to possession ends, and the pledge with it.
page 76 note 2 Mitākṡarā comm. on Yājñ., II, 58; ed. Nirṇaya-sāgara Press, 1909, 159. Gharpure, J.B. (Yājñavalkya Smṛti with the commentaries of (1) The Mitākṡharā by Vijñaneśvara Bhikṡhu …, Chapters I–VII.…. An English translation with notes … Second edition, Bombay, 1938, 821–2)Google Scholar translates as follows: ‘(To this) the answer is: Even the act of pledging itself is considered as a circumstance, although coupled with a contingent condition, creating the creditor's ownership. The acceptance of a pledge also is well known in the world as a circumstance, also coupled with a contingency, creating the creditor's ownership. So when the amount becomes doubled, and also when the appointed time has arrived, the right of paying the amount becomes entirely extinct, and therefore under the present text there occurs an entire cessation of the debtor's right of ownership, and the ownership of the creditor becomes absolute’.
page 76 note 3 Devaṇṇa-bhaḍḍa, Smṛti-candrikā, ubi cit., 141. The sale of sesamum was prohibited by the religious law to certain persons (see texts in Kane, op. cit., n, 127) but the restriction was overcome by allowing exchanges: cf. Āpastamba referred to by Kane, ibid., 129. Consequently the agreement according to which land is taken instead of a sum of money due but not capable of being paid is an exchange and therefore a lawful means of acquisition, although not mentioned by Gautama.
page 76 note 4 This is the definition of transfer of title according to the compiler of the Sar. vil. See ibid., 277.
page 76 note 5 On this general problem see BSOAS, XVIII, 3, 1956, 475Google Scholar and seqq. On saṇkalpa as a cause of the cessation of Property see Svatva-rahasya (to be published), IV, § 10.
page 76 note 6 This is an inverted statement of Prabhākara's gibe: pralapitam idaṇ kenāpi ‘arjanaṃ svatvan nāpādayati’ iti vipratiṡiddham. It is rubbish to say that acquisition does not produce Property. But there was more in the suggestion than Prabhākara was prepared to admit, and all his juristic followers have missed the point. But that is a subject for treatment elsewhere. The reference is Bṛhati on Jaimini, IV, i, 2. See J. Econ, and Soc. Hist, of the Orient, I, 1957, 66–97.Google Scholar
page 77 note 1 The sentence at first reading is obscure. In fact it is a rather brilliant suggestion, considering the state of the subject at that time. It was conventionally accepted that Propertywas destructible, and Property was producible; but an instance of the one would not by any means necessarily lead to an instance of the other. This was not unreasonable since one might destroy one's Property by, for example, forgetting about a buried object, by determining to abandon it, or by dedicating it for the public use; and in each case no Property was caused by one's act or omission. The objector has pointed out that a mental gift is no transfer of Property (as contrasted with a ceremonial gift in the presence of the donee and with pouring of water, etc.) since mere saṇkalpa, ‘intention’, does not create Property. But, says our author, what about (i) dedications to an idol, where the idol's Property is traced to the saṇkalpa of the dedicator, and (ii) grave sins, which cause ‘fall’, and thus the loss of all Property, so that the heirs inherit as if on death? Is there any substantial point in saying that the saṇkalpa is not a cause of the idol's Property, and that the sin is not a cause of the heir's succession ? Assume that, as we observe, they are in fact causes, they create and do not merely destroy, and we are a long way to removing your difficulty, which is of a purely technical origin. We must, as he says next, have regard to what actually happens.
page 77 note 2 It is a maxim of the śāstra, stressed most frequently in the sixteenth and seventeenth centuries, that the vyavahāra portions (to which all these discussions belong) are ultimately based upon practical requirements and actual usage, notwithstanding the fact that smṛti-tenta are the authoritative hooks upon which the rules are hung.
page 77 note 3 A doctrine accepted from the Mīmāṃsakas, who had a vested interest in such a view. Dhāreśvara, i.e. Bhoja, objected to this, and he had some following, but the majority of the jurists are content to accept a conclusion which gave less trouble to the public. The matter has been investigated elsewhere (see p. 77, n. 6, above). A good reference is Sarkar, K.L., The Mimansa rules of interpretation as applied to Hindu law, TLL for 1905, Calcutta, 1909, 390Google Scholar and seqq. Madana-siṃha (attrib.), Madanaratnapradīpa, Vyavahāra-vivekoddyota, ed. Kane, , Bikaner, 1948,Google Scholar has an excellent passage on the subject at pp. 323 and seqq.
page 77 note 4 The mention of this caste, well-known in Bengal, Eastern India generally, Uttar Pradesh, and even in Maharashtra, is significant. The author did not want to use the actual caste name of the people who most frequently participated in this transaction as kauttikas, because that would have the effect of limiting the application of what he was saying, but it is extremely likely that he had a caste such as the Reddis in mind. Although in many places castes lower than Kāyasthas (who are held to be Śūdras by some decisions of modern courts and dvijas by others) must have been frequent tenants of ordinary farming leases, it is quite probable that government revenue-leases were monopolized by a particular class. Valuable material about Kāyasthas is collected in Kane, op. cit., n, 75–7, and it is evident that their identity commenced with an occupational aptitude, namely in administration of a more or less subordinate character. Vijñāneśvara, on Yājñ., I, 336, where Kāyasthas are classed with cāỖas (p. 81 inf.) and thieves accounts for the sage's singling them out for especial supervision by the King on the ground that they are normally highly in his favour and possess extraordinary cunning. They were not mere accountants in Aparārka's eyes (c. A.D. 1100), for when he comments on the same śloka (there = I, 334) he says kāyasthāḥ karādhikṛtāḥ, i.e. those that supervised the actual collection of the revenue. Śūlapāṇi in his Dīpakalikā (on I, 336), written between 1420 and 1465, is more cautious, since many Kāyasthas in Bengal were not employed in government service. He says rāja-sambandhāt prabhaviṡṇavaḥ, i.e. only those in a position to oppress the public because of their official status at Court. More to our present purpose, however, is the fact that in Āndhra during the thirteenth century at any rate Kāyasthas were in a position to carry on an independent territorial rule, for in A.D. 1239 the powerful āndhra emperor Gaṇapati Kākatīya of Wāraṅgal had to subdue by force Kāyasthas ruling in the region corresponding to the modern Cuddapah and Kurnool Districts. See Sastri, K.A. Nilakanta, A history of South India, Oxford, 1955, 210,Google Scholar 211. Whether the preferential right to clerical appointments to Government was still evident in the sixteenth century may be open to doubt. The mention of the word deśa ‘District’ makes it quite clear that these people might be revenue-farmers as well as private tenants.
page 78 note 1 The choice of this word, unknown to the compilers of lexicons, is strongly reminiscent of uttamarṇa ‘a creditor’.
page 78 note 2 Cases where the uttama takes profits over and above the premium are, he says, to be attributed to a special agreement to that effect. There is a certain reciprocity in the relationship. The kauttika can be forced to pay his rent, whether the income reaches that amount or not; similarly the uttama must take a chance whether there is any profit. If the kauttika stipulates that he shall not be liable for loss, i.e. agrees to pay over as rent a proportion of the net income, there can be no question but that the uttama will oblige him to pay over that proportion, however large the income may turn out to be.
page 78 note 3 The text is not found in Jolly's edition.
page 78 note 4 The root dā is found (very rarely) in the sense ‘to bind’.
page 78 note 5 See Monier-Williams for the usual senses of sandāna. In the normal kuttā, says our author, the corpus of the property is ‘bound’ to the kauttika, so that he may take all the income to the exclusion of the uttama, subject to his performance of his part of the bargain.
page 79 note 1 This text is likewise not traced in the printed edition.
page 79 note 2 The sense is not perfectly clear, since the whole extract has been affected by misunderstanding in the course of the transmission of the text. What should have been read uttama- has twice been written uttamo, and the true subject of the verb smarati has been missed, apparently by both editors. It would seem that Bhāruci's notion of Viṡṇu's meaning is that the profit is the total income; out of this the rent is deducted and there is another ‘profit’ remaining over. If this amounts to a quarter of the whole, but not more, the kauttika may, in this special kind of kuttā, keep it. The law allows the uttama mentally to relinquish a quarter, even when he says that he relinquishes none of the profits over and above the rent.
page 79 note 3 i.e. when the kauttika makes no profit at all, or his profit amounts to less than a quarter of the total income, or it amounts to more than a quarter.
page 79 note 4 At first sight this is an odd rule. We commence with the position that the uttama claims, and the kauttika admits that the uttama is entitled to, all the profits which accrue from the tenure over and above the rent or premium. Then we are told that according to Viṡṇu a kauttika is entitled to a profit of ‘only’ a quarter. We might suppose that the text of Viṡṇu refers to quite a different situation, where the kauttika pays a heavy fee for the right to work the land, and might prima facie claim all the profits, whereupon a customary rule comes to the aid of the uttama and secures to him three-quarters of the profits. It may well have been the case at some stage in the history of land-tenure in South India that tenants paid three-quarters of the gross produce to the owners and kept only a quarter for themselves, but we may doubt whether this situation prevailed far or for long. Is it not more likely that this text (if genuine) applies to a situation where a quarter of the net profit is secured to a tenant, whatever the value or extent of his premium, in order to secure good farming ? The Sar. vil. understands Bharuci to say that the quarter is estimated on the total profit from the kuttā, and that probably means the total gross income. Whichever method of calculation is correct the principle is clear that the tenant is protected. We are told that the situation in which this protection is available to him is that in which the uttama demands all the profit, leaving the possibility of loss exclusively with the kauttika. Now we see why an exact quarter is under consideration and neither more nor less: the calculation of the rent would be impossible if neither party knew what proportion of the profit if any would belong to the tenant. The availability of a quarter would encourage him to work the land well, while any excess would be for the benefit of the owner. A loss would be borne, according to some only (see below), exclusively by the tenant, but any profits up to but not reaching a quarter would be claimable by the owner. To illustrate the rule two balances are given below. In both cases the kauttika estimated ‘on the safe side’.
page 80 note 1 This suggestion stems from a desire to protect the tenant still further. If Viṡṇu secures to the tenant a quarter in the event of a profit, in the same type of contract the tenant ought to be indemnified to the extent of a quarter (and neither more nor less) if the kuttā brings him in a loss, in order that the speculation may be reciprocal; and thus the calculation of the rent may be more favourable to both parties, and it may be easier to let land, the exact productivity of which may for special reasons be difficult to appraise in advance.
page 80 note 2 Given that this reciprocity is justified by Viṡṇu's text, they believe that the owner can insist on the tenant's bearing three-quarters of the loss, and the tenant can insist on the owner's bearing three-quarters of the risk of an absence of profit; both, however, may be more generous if they like—the opposite course is not open to either.
Yājñavalkya's attitude to Kāyasthas (above, p. 77, n. 4) is indicated by the company in which he places them. Vogel, J.Ph., BSOAS, XX, 1957, 566–7,Google Scholar has shown that cāḍa meant ‘head of a pargaṇā’, i.e. a middle-grade provincial civil servant. But Aparārka says it means ‘an informer’; Vijñāneśvara equates it with a confidence-trickster; Śūlapāṇi thinks the word should be cāra, glossed ‘one who gets the better of others’. The word became synonymous with a swindler who takes full advantage of a colour of authority, but between Vogel's sources (and see Maity, S.K., Economic life of northern India …, Calcutta, 1957, 64Google Scholar) and the fifteenth century cāṭa ceased merely to mean a grade of official, and the text of Yājñ. had to be glossed or modified accordingly.