MIMANSA

Contents

• Preface to the Second Edition
By Justice Markandey Katju Judge, High Court, Allahabad

• Preface to the First Edition
By K.L. Sarkar

• Index

Part I

Introduction

Chapter I

The Mimansa Principles of Interpretation-I

Chapter II

The Mimansa Principles of Interpretation-II

Chapter III

The Mimansa Principles of Interpretation-III

Part II

Mimansa Rules of Interpretation

By K.L. Sarkar

The introductory Lecture

Section I.—Remarks on the subject of interpretation generally.

Position and importance of the rules of interpretation—modern treatment of the subject—treatment by Maxwell—the two cardinal questions—four principles deduced—four counter-parts of the
Mimansa shastra—necessity of illustrative cases, axioms—presumption against superfluity—Anarthakya—presumption against contradiction—Vikalpa.

Section II.—Introductory remarks on the Mimânsâ system of
interpretation.

Sir J. Edge's observations—Mr. Colebrooke on Mimansa—Pro. Maxmuller on Mimansa—Dr. Thibaut on Mimansa—peculiar impor-tance of the fixed rules of interpretation as regards the Hindu law—history of the Hindu law, first stage—difference between Sruti and Smriti—administration of justice in this period—second stage—administration of justice in the second period—third stage that of codification—administration of justice in this period—State courts—popular courts—knowledge of Mimansa a necessary qualification of assessors—fourth stage, Buddhistic period—the impress of Buddhism in Mitakshara—Agnipurana evidences development of the Buddhistic period—fifth stage, the Mahomedan period—the Pathan feudal system—the administration of Hindu law in the Pathan times—the Mogul system of administration—the Mimansa rules not a dead letter—Vedic origin of the 'Hindu system of interpretation—an incidental observation regarding Jaimini's date—nature and purpose of the sutras—sruti law and smriti law—Hermenutic and Mimansa compared—application of Mimansa rules to civil law not strained—modern definition and Jaimini's definition of law—modern idea and Jaiminis idea of sanction—Mr. Colebrooke on apurva sanction—dharma and adharma—Jaimini's classification of vedic texts—the difference between vidhi and arthavada—Namadheya—difference between Arthavada and Nama-dheya—definition of vidhi—Namadheya discussed—Jaiminis classi-fication of vidhi text : (1) according to the degree of obligatory force—vidhi, niyama and parisankhya— vedic and modern ideas on the subject discussed—(2) According to the purpose—utpatti vidhi—karma in relation to primary command—viniyoga vidhis, prayoga vidhis &c., are accessories to utpatti vidhis which again are accessories to pradhana chodana—viniyoga vidhis and prayoga vidhis explained—Adhikara vidhis—scope of the vedic vidhis—they include visible and worldly matters—further division into purushartha and kratwartha vidhis— arthakarma and pratipattikarma—nitya and naimittika—evolution of smiriti law from the vedic law—anarabhyedhita vidhi—pratishedha and paryudasa—Vikalpa—pratyakshya and kalpya—shabdi-bhavana and arth-bhavana.

Section III.—Application of Mimansa Rules to the Positive
Smriti law.

Commentator's discussion more theological then judicial—nature of these discussions illustrated—distinguished hindu lawyer's judicial application of Mimansa—Vijnanesvara—Jimutavahana—Nilkantha— Medhatithi—Kulluka—Raghunandana—Apastamba Baudhayana &c.—the process of adhikarana—adhikarana identical with nyaya—Mimansa nyayas superior to those of grammar and logic—a brief analysis of the subject—germs of Mimansa in the vedas—Mimansa principles in dharma sutras—principles of interpretation in smiriti—classification of the Mimansa rules of interpretation—(1) Axioms of interpretation—Sarthakyata—laghava—arthaikatva—guna-pradhana—samanjasya—vi-kalpa—(2) general principles of interpretation—sruti—linga—vakya—prakarana—importance of the sruti principles—their relative force—sthana and samakhya—(3) principles of application of texts—(4) nyayas—(5) general rules regarding smiriti text and usage—plan of the lectures to be delivered.

Lecture II

The General Principles of Mimansa
Interpretation

Section I.—The elementary principles or the axioms of inter-
pretation

Axioms of interpretation—first axiom discussed—gourava, explanation from nyaya malavistara—gourava explanation from dayabhaga—third axiom discussed—illustration from dayabhaga—vakyabhada from ambiguity of words—the conception of vakyabheda explained—Vakyabheda from ambiguity of words—the conception of vakyabheda explained—fourth elementary axiom discussed—uha and badha illustration of this axiom—the axiom hold goods equally with the vyavahara law—fifth axiom discussed—reconciliation by the arthavada principle—reconciliation by referring to different subject matters—sixth axioms discussed.

Section II.—The Four General Principles brodly explained.

Sruti principle—sruti, linga, vakya, and prakarana in relation to each other—Mr. Kunte's comparative explanation of sruti, linga &c.—Laugakshi Bhashkara's explanation—Apadeva's explanation—Bhatta's discrimination between sruti and linga—Bhatta's discrimination between vakya on the one hand and sruti and linga on the other—Bhatta's discrimination between vakya and prakarana—Savara Swami's view on sruti, linga and vakya—Udichya Bhattacharya—classification with deference to matter and manner.

Section III.—Each of the four principles separately dealt with
in detail.

Sruti principle—Sruti serves to explain other passages—expressions Sruti, Linga &c., replaced by other expressions—modern ideas corresponding to the idea of linga—double meaning of the word linga—Apadeva's larger view of linga—Bhatta Sankara's view of linga—Bhatta's analysis of linga and lingi—Barhi maxim an illustration of linga principle—Laugakshi's explanation of Barhi maxim—Maxwell on the technical meaning of words—pranabhrit maxim—linga corresponds to lakshana artha—eternity of the vedas by linga principle—construction by linga, vakya &c. resorted to by digest writers—Vijnaneswara and Jimutavahana—vakya principle—vakya defined and illustrated—vakya principle discussed in detail with illustration—vakya includes Adhyahara Anusanga &c.—illustrations from Slokavartika—modern writers use anvaya instead of vakya—prakarana principle—Laugakshi Bhashkara's explanation of prakarana with illustrations—upa-lakshana is another name for prakarana—distinction between pra-karana and guna sruti—sthana principle defined and explained. Its identely with krama—the importance of krama in vedic ceremonies and in certain cases of succession of heirs—samakhya principle—samakhya is another case of prakarana.

Section IV.—The relative force of Sruti, Linga, Vakya &c.

The relative force of the several principles—the Mimansa principles of construction are according to English writers construction by context—the distinction between linga and vakya—sruti distinguished from linga, vakya and prakarana—superiority of sruti over linga and vakya and of linga over vakya-superiority of vakya over prakarana—illustration from Jimutavahana showing the superiority of sruti—illustration from Jimutavahana showing the superiority of linga to vakya—pramanas.

Lecture III

General Mimansa principles regarding
the application of texts

Section I.—Which texts are obligatory and which are not obli-
gatory as also which are only partially obligatory.

Distinction between interpretation and application of text—the three kinds of texts defined, discussed and illustrated—the importance of object and reasons—pradhana chodana—non-obligatory text—arthaveda—vidhibadnigadadhikarana—hetubadnigadadhikarana—non -obligatory text—namadheyas—disagreement as to interpretation of sheyna text between Savara Swami and Kumarila Bhatta and others—distinction between vidhi and niyama in their applications to transcendental object—niyama is only a directory rule—distinction between kratudharma and purushadharma—several illustration of the purushadharma—arthakarma and pratipattikarma—manushyadharma and arthavada—manushyadharma and kratudharma.

Section II.—The remaining principles of application.

The distribution of topics as made by Jaimini—adhikara vidhis—the germ of the principle of exclusion from inheritance contained in the Jaimini's sutras—competency of women to perform vedic ceremonies in ancient times—matters treated under adhikara vidhis—status of women and sudras—general explanation of krama vidhis—the three chief kramas—the bearing of krama upon vyavahara law—atidesha—uha and badha—the necessity of atidesha how arisen—Jaimini's treatment of—Savara Swami's explanation of it—illustrations of atidesha from acharakanda—application of atidesha to the case of the adopted son—similar application to the case of Hindu wills—scope of term uha—uha in relation to arthavada and niyama—vedic and laukika niyama—application of uha to marriage to adoption—uha vichara corresponds to modern construction most agreeable to justice and reason—badha as used by Jaimini—badha, with regard to positive text—badha, with regard to negative text—Sree Bhatt's two fold division of it—prapta-badha—illustrations—aprapta-badha—illustrations—reconciliation of conflic-ting text by badha—Savara Swami's dealing with conflicting texts—re-conciliation of smiriti texts—tantra and prasanga—avapa.

Lecture IV

Mimansa rules specially regarding
the Smritis and Usages

Section I.—A succinct idea of the topic.

Sruti and Smriti law—case law and statute law—Jaimini's treatment of smriti and usage law—sutras relating to Mleccha language and usages—different construction of padartha prabalya maxim by Kumarila and Savara—seven principles of construction of smriti and usage law—sutras relating to the first principle—sutras relating to the second principle—sutras relating to third principle—sutras relating to the fourth principle—sutras relating to the fifth principle—sutras relating to the sixth principle—sutras relating to the seventh principle—correspondence of the seven rules with modern legal ideas.

Section II.—Detailed consideration of the seven rules.

Rule 1. Smriti presumed to be authoritative and binding—vedic origin of smriti—Rig Veda—law and religion blended together—Sir Henry Maine and the philosophers of the revolution on civil law—Rule 2. In case of conflict between a smriti text and a vedic text, the latter should prevail—Odumbari Nyaya, an illustration of conflict—conflict between smriti and puranas—Rule 3. The authority of the smriti is vitiated if it is based on a perverse motive—sutra speaks of only—Mandlik's wide view of it—Savara and commentators not take such wide view—visarjana home—validity of the text is questioned in case of selfish motive—Kumarila's view—Apastamba—Siromani—Darvi homa—reason does not invalidate the vidhi—padarttha prabalya—Savara Swami's view of the sutras—Kumarila's view of the sutras different from that of Savara—Rameswara Suri explains the difference—Kumarila's view of the 7th sutra—it establishes the validity of usege—conscious satisfaction is not the only test of validity of usage—usage is valid if recommended somewhere—non-condemnation by the wise gives validity to usage—Colebrooke on the Adhikarana—what is condemnation by the sruti or smriti—doctrines of factum valet and vox populi—Rule 5—matters sanctioned by the shastras should have preference—verbal usages—conflict between two usages—Rule 7. An usage or smriti must be reduced to the short, simple and general form of a vedic vidhi—holaka maxim—sutras relating to the maxim—conclusion—the vidhi is general though custom is local—the holaka maxim relates to religious ceremonies—Mimansakas recognise local or tribal customs in case of worldly matters but not in case of religious matters—Jaimini speaks of only approved usages but Manu enumerates all sorts of usages—the brahma marriage prevails and the others mostly disappeared—very little foreign influence at the time of Savara—Kumarila condemns foreign usage—foreign usages when valid—the two other adhikaranas—preference of Sanskrit words in interpreting popular sayings—the words to be understood in their general sense—akriti and vyakti—three striking points.

Lecture V

The Mimansa Nyayas or the specific principles of
Mimansa called Nyayas (Maxims)

Section I.—Introduction to the topic.

Nyayas resemble headnotes—Maxmuller's analysis of a nyaya—knowledge of general principles is indispensible—leading word or phrase in a text to be found out in cases of sruti and lingas—what are the leading words—four classes of nyayas.

Section II.—Maxims relating to the interpretation of words.

Three sub-divisions of Class I—Class I Group A—usage sense—popular meaning—sruti sense—foreign words in their foreign sense—same term in modern and ancient texts—Class I Group B—wooden sword maxim—aruni maxim—shastric usage of the words—when the word is used in a qualified sense—when in a technical sense—same word must not have several senses—general word meaning an individual object—symbolical meaning in preference to natural meaning—one object of a class gives name to the whole class—figurative sense—sense of a vague word to be gathered from what follows—Class I Group C—singular number includes plural—single animal maxim—habis maxim—partridge maxim—explanatory observations on the foregoing maxims.

Section III.—Maxims bearing on the construction of sentences
and texts.

Four sub-divisions of Class II—Class II Group A—strict construction—preference of literal construction—intelligible sense meaning—text having doubtful point—low caste priest maxim—subordinates merge in the principle—arthavada maxim.

Class II Group B—maxim of implied vidhis—pillar maxim—nivita maxim—individual virtue maxim—mutually un-connected clause maxim—mutually connected clause maxim closing the first maxim—suktavaka maxim—the principal and subordinate maxim—maxim of the incidental—stepping forward maxim—whey maxim.

Class II Group C—complex sentence maxim—disintegration of sentences maxim—ellipsis maxim—take it forward maxim take it backward maxim—sacred thread maxim—maitravaruna maxim—

Class II Group D—blackbean maxim—burnt offering maxim—chip of wood maxim—kaimutika maxim.

Class II Group E—prohibition of speaking untruth—three debts maxim—chitra maxim—simile maxim—explanatory observations on the foregoing maxims.

Lecture VI

Maxims relating to negative rules and cases of conflict and also of certain miscellaneous maxims

Section I. Maxims regarding negative rules and conflict of
texts.

Preliminary discussion on the subject—four divisions of the negative rules and conflict of texts—Groups A,B,C,D.—

Class III Group A—four maxims regarding Pratishedha.

Class III Group B—four maxims regarding Paryudasa.

Class III Group C—two maxims regarding alternative clauses &c.

Class III Group D—three maxims regarding the application of smriti texts—detailed considerations of maxims of Group A—kalanja maxim—as explained by Laugakshi Bhashkara—shorasi maxim explained—dvayo pranayanti maxim explained—explanations and considerations of details of maxims of Group B—explanatory observations on paryudasa—explanations and considerations of details of maxims of Group C—explanatory observations on losing hold maxim—maxim of the general and particular explained—explanations and considerations of details of rules of Group D—explanatory observations on the smriti maxims.

Section II.—Miscellaneous maxims.

Class IV Group A—maxims regarding competency.

Class IV Group Bmaxims regarding conditions to be observed by the performers.

Class IV Group C—maxims regarding the ownership of property—five principles regarding property.

Lecture VII

Certain principles of interpretation of common knowledge or the popular maxims

Preliminary observations on the binding force of the popular maxims.

Section I.—Popular maxims with legal significance.

Maxims with legal significance—maxims expressing wit or sarcasm—principles of interpretation other than maxims

Section II.—Explanatory observations on the forgoing maxims.

Mimansa pramanas—scope and meaning of popular maxims—maxims explained—three fixed rules of guidance for writing
treatises

Section III.—Some other popular maxims.

Maxim described by Colonel Jacob.

Lecture VIII

The Mimansa rules of interpretation as applied to and as applied by digest writers

The state of things before the digests—ancient and modern conception of property—general principles of law evolved gra-
dually.

Section I.—Departure taken by Digest writers in different
directions.

Principles of succession and inheritance how developed—different views of Vijnaneswara and Jimutavahana regarding succession and inheritance—the principle of spiritual benefit and that of family corporation, as advocated by Jimutavahana and Vijnaneswara respectively.

Section II.—How the Mimansa principles are to be applied to
the texts of the Digests.

Different interpretation of Gautama sutra by Jimutavahana and Vijnaneswara though both rely upon Mimansa sutras—conception of property according to Vijnaneswara and Jimutavahana—Jimuta's spiritual doctrine is in accordance with Manu–the doctrine of factum valet—another instance of divergence of opinion between Vijnaneswara and Jimutavahana—dvayo pranayanti maxim in connection with widow's right to succeed to husband's property—dvayo pranayanti maxim as explained by Jimutavahana—nitya and kamya vidhis—Jimutavahana's view as to father's power over ancestral and self-acquired property—factum valet doctrine—its misinterpretation by english judges—nature of father's ownership over ancestral and self-acquired property—misinterpretation of factum valet doctrine violates the linga, vakya and prakarana principles—the law of wills and that of gifts—gift to non-existent beings is invalid is too general.

Lecture IX

Section I.—Application of Mimansa Principles by writers other
than the founders of the two codes.

Law of adoption as interpreted by Nilkantha and Nanda Pundit—Nilkantha on Sarvadakshina maxim—the three maxims invoked by Nilkantha to explain the subject of adoption—Nilkantha refers to Maitravaruna maxim in construing the text of Saunaka—the text of Saunaka is not limited to sudras—Sankara Bhatta's dealing with three-debts maxim—four maxims referred to in Dattakamimansa in connection with adoption—pranabhrit maxim—vaiswadeva maxim—jatesti maxim—ishti somiya maxim—smiksha maxim—kapijjala nyaya—Saunaka and Sakala's texts as regards the adoptibility of certain sons—necessity of Mimansa rules in interpreting smritis—all imperative texts are not dharma or vidhi—utility of classification of texts into vidhi and arthavada—principle of linga how applied—kamya and nitya vidhi—application of grahaikatwa maxim to a certain passage—Raghunandana applying vakya principle in construing a passage of Manu—Raghunandana's illustration of apurva sanction with reference to Janmashtami ceremony—Raghunandana's vindication of animal sacrifice in Durgapuja—difference between pratishedha and paryudasa as illustrated by Raghunandana in his Malamasatattva—laghava axiom—atidesha principle.

Section II.—The utility of the presumptions of the substantive
law in matters of interpretation.

Principles underlying smriti texts—Jaimini sutras are not altogether silent of civil law—the three great presumptions of the substantive smriti law—the maxim of the three-debts—the three presumptions relied upon by digest writers—the great influence of the three debts—the pervading influence of the family institution.

Lecture X

Section I.—Interpretation of Hindu law regarding adoption by
the Courts under the English rule.

General remarks—rules laid down by the Collector of Madura v. Mootoo Ramalinga substantially correspond to Mimansa principles—cases showing where verbal construction has been resorted to—construction of the texts by their lordships of the Privy Council is in accord with the Mimansa rules—examination as to the application of Mimansa rules—the decision as to the validity of the adoption of an only son is not in accord with the Mimansa rules—construction of the texts of Vashishtha and Saunaka as to the adoption of an only son by the Mimansa rule—prohibition of the adoption of an only son is the result—adoption of mother's sister's son as well as that of daughter's and sister's son invalid—Saunka and Sakala on the invalidity of adoption of daughter's, sister's and mother's sister's son.

Section II.—Cases decided by the Courts under the English
rule regarding the Hindu usage and custom.

Customs in harmony with the vedas prevail—decided cases harmonize with the Mimansa principles.

Lecture XI

Resemblance or otherwise between the Hindu legal maxims and principles of interpretation and
those of the modern European law

Section I.General resemblance between western legal maxims
and Hindu legal maxims.

Maxims on public policy and legislative policy—maxims relating
to the crown—logical maxims—fundamental legal principles—
maxims regarding transfer of property—maxims regarding the law of descent—maxims relating to law of contract—maxims relating to interpretation.

Section II.—Resemblance and difference between not general
lines of interpretation followed by English author
and the Hindu authors.

Mimansa rules of construction substantially agree with the modern english principles of construction—some other Mimansa maxims—illegality and irregularity—patent and later ambiguity.

Lecture XII

A summary of Hindu Jurisprudence and of Mimansa Philosophy and Literature

Part I

Hindu Jurisprudence

Threefold character of Hindu law—the law has sanction—the nature of ancient and modern sanction—ecclesiastical courts, their functions—king's courts and vyavahara law—meaning of Vyavahara—divine right of the king has no place in hindu shastra vyavahara defined—hindu jurisprudence. Its identity with spiritual law—the point of difference between the spiritual and civil law—classification of vidhi into vidhi proper, niyama and parisankhya—like classification of spiritual vidhi—vyavaharic niyama illustrated—parisankhya—as enunciated by Raghunandana—arthavada.

Part II

Mimansa Philosophy and Mimansa Literature

Mimansa philosophy—the conservative and rational school of Mimansa philosophy—Mimansa literature—Ballantyne's observation on sutra literature—the style of the sutras—classification of
Jaimini sutras—age of Jaimini—Bhagawan Upavarsha—Savara Swami —Kumarila Bhatta—Prabhakara—Madhavacharya—Parthasarathi Misra—Khandadeva—Gaga Bhatta—Somanath—Raghavananda—Vedanta-desika—Appya Dikshita—Bhattasankara—Narayanatirtha Muni—Rameswara Suri—Udichya Bhattacharya—Laugakshi Bhashkara and Apadeva—Rangaraja—Ram Chandra.

Lecture XIII

A brief resume

Part III

Selected Judgments

(1) Sardar Mohammad Ansar Khan v. State of U.P.

(2) Udai Shankar Singh v. Branch Manager, L.I.C. Bharwari

(3) Amit Plastic Industry, Ghaziabad v. Divisional Level Committee, Meerut

(4) Mahabir Prasad Dwivedi v. State of Uttar Pradesh

(5) Tribhuwan Mishra v. District Inspector of Schools, Azamgarh

(6) Ramesh Upadhya v. State of U.P.

(7) Beni Prasad v. Hardai Bibi

(8) Kalgavda Tavanappa Patil v. Somappa Tamangavda Patil

(9) Narayan Pundlik Valanju v. Laxman Daji Sirsekar

(10) V. Subramania Ayyar v. Rathnavelu Chetty