DONALD R. DAVIS, JR.

RECOVERING THE INDIGENOUS LEGAL TRADITIONS OF INDIA: CLASSICAL HINDU LAW IN PRACTICE IN LATE MEDIEVAL KERALA

ABSTRACT. The collection of Malayalam records entitled Vanjeri Grandhavari, taken from the archives of an important Namputiri brahmin family and the temple under its leadership, provides some long-awaited information regarding a wide range of legal activities in late medieval Kerala. The organization of law and the jurisprudence represented by these records bear an unmistakable similarity to legal ideas found in dharmasastra texts. A thorough comparison of the records and relevant dharma texts shows that landholding Namputiri brahmins, who possessed enormous political and economic power in the region, mediated the implementation of dharmasastra into the legal system. From this comparison arise new understandings of law and legal categories such as ‘custom’ and ‘positive law’. Moreover, such comparisons begin to elucidate the problems involved in Western assumptions that it is textual law, not its interpretation and application by humans, which controls behavior. The Vanjeri records demonstrate not only the importance of dharmasastra as a historical document but also the manner and extent to which dharmasastra provided the foundation for legal systems in Kerala as well as in other regions of India.

The study of India’s pre-colonial legal history has been impeded by the dearth of records of actual court proceedings. A few records containing information about legal procedure, including several jayapattras, or rulings handed down by a court, have been found in various parts of India.1 Unfortunately, such rare epigraphic and manuscript records of court proceedings, if they ever existed in abundance, are now lost, casualties of India’s weather and insects. Thus, reliable historical information about legal procedure and the practices observed in royal and local courts is difficult to find. So, in the absence of court proceedings, what can we know about pre-colonial legal traditions in India? One way of answering this question is to investigate the dharmasastra and vinaya traditions of so-called Hindu and Buddhist India,2 respectively. Several works which purport to describe “the law” of ancient India have been published exclusively or primarily on the basis of these texts.3 Both of these traditions, not to mention Islamic jurisprudential writings, contain elaborate discussions of law, legal theory, and jurisprudence. However, we still lack examples where the knowledge encapsulated in legal texts was specifically implemented in an indigenous system of law, a fact which

Journal of Indian Philosophy 27: 159–213, 1999. c 1999 Kluwer Academic Publishers. Printed in the Netherlands.

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makes any legal history culled exclusively from such sources both hollow and speculative. One contention of this essay is that these texts were simply not used in this way. Therefore, to rely only on literary, particularly jurisprudential, writings is to see only part of the history of law in India – and a rather sanitized, erudite part at that. Another way of finding information about indigenous legal systems in India calls on us to change our perspective on what “law” is. If we can get around preconceived ideas about law (formal courts and court hierarchies, precedent, black-letter law, etc.) stemming from European, especially Roman and British, legal traditions, then the law of medieval India becomes approachable through a variety of historical documents, including Sanskritic traditions such as dharmasastra. While we are not likely to discover a hoard of pre-colonial court records from India, we do have palm-leaf legal records kept by important families, temples, and other jurisdictional legal bodies from late medieval India. Such records of legal transactions, although not records of trial procedures, are a good source of historical information about law and legal practice in medieval India.4 Especially in parts of India not much affected by European colonial legal systems, such records should prove to be useful in creating theoretical models of legal practice in the precolonial period. These records provide a solid historical basis in both time and space for dharmasastra texts, the dates of which are impossible to determine precisely. A comparative study of local legal records with then contemporary and classic jurisprudential writings will not only elucidate the practice of law in local communities but also help us to understand properly how dharmasastra literature was used in relation to practical law. In this paper, I make a preliminary attempt to draw together these two kinds of historical documents, namely local legal records and dharmasastra literature, with reference to the Kerala region in the late medieval period. Specifically, I will outline legal practices in the Trikkandiyur sanketam (near modern Tirur), a semi-autonomous political territory headed by the Vanjeri illam, a Namputiri Brahmin family. The Vanjeri house, also known as Morttalaceri, was the principal  trustee of the well-established Siva temple in the region, and as such made transactions on behalf of both the temple (i.e. the god) and itself simultaneously.5 The sanketam was under the sway of both the Raja of Vet.t.am, lord over a small portion of southern Malabar, and the Zamorin of Calicut, the ritual and military overlord of the entire Malabar region. As I said

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above, legal records from communities in close contact with British or other foreign political and legal powers are less useful in the initial stages of recovering pre-colonial legal practices. However, the isolation of the Vet.t.attu Nat.u region from outside powers is attested by M.G.S. Narayanan (1987: xv) as follows: “Efforts to strike root in the Vettam territory seem to have fizzled out in the 16th century. The Dutch who followed the Portuguese as the dominant power on the West Coast in the 17th and 18th centuries neglected this area as they did not have considerable dealing with the Vettam princes.” Moreover, Andre Wink (1989: 73) writes, “It is striking to see that the ethos of South-Indian Muslims of the harbour towns was the exact opposite of the isolationism and rural orientation of Malayali Hindu society”. 6 In the case of medieval Kerala, the urban/ rural or coastal/ inland distinctions are more useful than Muslim/ Hindu in describing the differing worldviews of Malayali communities. Nevertheless, the area of Trikkandiyur conforms to the general characterization of medieval “Hindu” society as isolationist and inward-looking.7 Its overlords in Vet.t.am or Calicut may have been outward-looking, but the records clearly show that this area was not much involved in overseas trade and had few contacts with foreigners in the medieval period. It is precisely because Trikkandiyur was a typical temple community on the periphery of the Zamorin’s control and was not the site of any major influx of outside powers that it preserved traditional systems of law, politics, and economy.8 Thus, we can safely use the records from Vanjeri as examples of an indigenous Indian legal system at work. In the course of this essay, I will suggest that the key to understanding the legal system of the Trikkandiyur sanketam is the concept of desamaryada,9 or law of the region, which appears in the Vanjeri documents. The desamaryada of this temple-dominated region was comprised of legal ideas, advice, provisions, statutes, etc. which, though unwritten and uncodified, were well-known in the region. The standard interpretation of the term desamaryada as “customary law”, that is law particular to that region alone, is wrong because, at least in medieval Kerala, the term denoted “law as practiced in the region”, whether that law was limited to that particular area or not. The subtle distinction is significant because the law as practiced in Trikkandiyur, that is its desamaryada, shared many similarities to law in other parts of medieval Malabar and beyond. Moreover, many laws of the Trikkandiyur community, as represented by the archives of its most prominent family, display clear similarities to traditions and practices of law described in dharmasastra texts. At the same time, some legal practices not found in

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dharma literature, some of which may have been truly local customs, are also found in the records. In other words, there seem to be have been three major sources of the  desamaryada in the Trikkandiyur region: (1) dharmasastra literature, whether or not it was consciously appropriated as such, (2) legal practices not found in dharma texts, but prevalent throughout most parts of medieval Kerala and probably established through a combination of community interaction (trade, pilgrimage, immigration, etc.) and political intervention by regional and royal overlords,10 and (3) local customs peculiar to the Trikkandiyur sanketam itself, which appear to have been very small in number. The desamaryada of Trikkandiyur is nowhere completely delineated and certainly adjusted to socio-political and economic trends in medieval Malabar, but from at least the early sixteenth to mid-eighteenth centuries, this desamaryada represented a stable and well-known system of law in this part of Kerala. Both the Vanjeri records and relevant dharmasastra texts provide different kinds of insight into the nature and operation of the legal system of Trikkandiyur. It is often impossible to say where dharmasastra ends and local practice begins or vice-versa because our records begin from a period in which the fusion and incorporation of dharmasastra ideas and provisions into the local and regional legal systems of Kerala had already taken place, namely with the advent of brahmins to the Kerala and Tamilnadu regions. A single instance of compatibility between dharma texts and local records would be insufficient to establish an enduring relationship between the two. It is in the consistent and frequent occurrence of similar legal practices in these two historical documents that the relationship between dharmasastra and ‘real law’ becomes clear.  ASTRA  DHARMAS LITERATURE AND LEGAL PRACTICE

The debate over the relationship of dharmasastra and practical law in classical and medieval India has been argued for nearly two centuries.11 The question continually raised is: In what sense, if any, were dharmasastra rules and injunctions the law of the land? In a recent paper, Richard Lariviere (1997a: 97–8) has argued that the whole of dharma literature, especially smr. ti12 texts, should be understood as a record of customs from various parts of India and not as legal codes promulgated by the great sages nor as flights of brahminical fantasy as some have claimed.13 In other words, the prescriptions of dharma texts are not necessarily the law here and now, but they were laws some-

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where and sometime, i.e. they were the customary legal practices in some unidentified place and time. The injunctive idiom of dharmasastra masks its origins in the customs of various parts of India. The idea that the dharma literature is fundamentally a record of custom comes from the text themselves which state that the only human sources of dharma are the customs of learned men, the sis. t.acara, and the edicts of a king, rajasasana.14 There are, however, other aspects of dharma texts which must be taken into account before we can understand their relationship to legal practice. There is a tension in dharmasastra between the need to record accurately the customs of the people and the need to be faithful to the mımam . sa interpretive tradition which shapes the ideological idiom of dharmasastra. Mımam . sa gives dharma literature its tenuous, but ideologically powerful connection to the Vedas15 and the rules for the interpretation of its injunctions. The mımam a hermeneutical system16 . s provided dharmasastra with a mode of expression that firmly legitimized dharma texts as an extension of Vedic traditions and a standard of brahminical ethos. At the same time, this interpretive framework was used in recording the customary practices of classical India and incorporating them into texts. Moreover, mımam . sa hermeneutics were flexible enough to continually accommodate transformations in legal and religious practice  while still maintaining the sanctity and propriety of the revered ‘S astra’. Local customs were both the source of innovation in dharmasastra ideas and the connection of dharmasastra rules to the living populations and traditions of India. The nibandha, or digest, literature was a continuation of the systematization of contemporary and ancient local customs in the traditional dharmasastra idiom. For the historian, recognizing the ongoing connection between legal practice and dharma literature opens up several new possibilities for research, particularly for comparisons of dharma texts with epigraphic and manuscript records of legal activity. In medieval Kerala, many dharmasastras were copied and studied as shown by the large number of manuscripts of these texts still found in archives and homes in Kerala today. The prevalence of many dharma texts from various authors and regions indicates that the Namputiri brahmins of Kerala considered all of these texts worthy of preservation. Presumably, the interest of the Namputiris in dharma texts also shows that they held dharmasastra in general to be authoritative. The practical and historical implications of this authority are the subject of subsequent portions of this essay, but it should be pointed out here that there is no

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reason to think that studies of dharmasastra in Kerala were limited to a narrow set or ‘school’ of texts. The manuscript tradition simply does not permit such a conclusion. However, two interesting dharmasastra texts composed in Kerala do lend support to the idea that dharmasastra literature in general is a record of customs worked into the traditional language of Sanskrit s astra texts and disseminated by brahmins in a particular region. Furthermore, they demonstrate the significance of such ‘minor’ texts in historical studies of dharmasastra. The history and composition of the   a exemplify different, yet Laghudharmaprakasika and Vyavaharam al complementary aspects of dharmasastra, but both bolster the idea that the whole of dharma literature is a record of local customs written in the prescriptive, almost legislative, tone of older Vedic texts, particularly the gr. hyasutras.  17 only part of which has apparently surThe Laghudharmaprakasika, vived, deals primarily with the acara, or religious practices, subdivision of dharmasastra literature. There are, however, sections on rajadharma (duties of the king), smartavicaram (inquests regarding adulterous Namputiri women), and marumakkattayam (matrilineal inheritance). This text, which presents itself as the simple rendition of a text called “Bhargavasmr. ti”,18 is replete with Kerala-specific rules, customs, and language. In fact, its expressed purpose is to record the customs of “Ramaks. etra”, as Kerala, the land of Parasurama, is often called in the text. As with most dharma texts, the customs recorded are mostly those of brahmins, in this case Namputiri brahmins. Kerala-specific customs are mentioned throughout, but the Laghudharmaprakasika also contains a separate section on the 64 anacaras, or local customs of Kerala brahmins, which are specifically recognized as different from other dharmasastra rules. The mere existence of such a dharma text in which the author(s) self-consciously distinguishes it from other dharma texts is important for the insights it provides into the modes and motivations of dharmasastra composition.  in Kerala it is Though the text calls itself Laghudharmaprakasika, _ better known under the eponymous name Sankarasmr . ti. Under this  nkar _  title, the name and authority of Sa acarya, the famous Kerala sage and Advaita philosopher, are invoked. However, the text could not have  Sa  nkar _  been written by the original Adiacarya. The earliest conceivable _ date for the Sankarasmr ti is the fifteenth century A.D.,19 more than .  Sa  nkar _  five hundred years after the death of Adiacarya. Therefore, the name of a famous philosopher and saint of Kerala has been attributed to a well-known collection of dharmasastra rules in order to give its

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 nkara _ contents an authority not otherwise possible.20 The name of Sa certainly influenced the widespread reception of this text in Kerala. _ The editors of the published edition (Sankarasmr . ti, 1906: 1) believed   _ Adi-Sankara had composed this text. And one may often hear, as I have, Namputiri brahmins in Kerala today say, “We don’t follow Manusmr. ti, _ we follow Sankarasmr . ti.” _ The Sankarasmr ti provides a good example of Lariviere’s thesis that . all dharma texts can be seen as records of custom, because the text explicitly records living traditions and practices, religious and legal, as seen by  its Namputiri brahmin author(s). In the case of Laghudharmaprakasika, a collection of customs followed by or advocated by the Namputiri _ Brahmins of Kerala came to be known as Sankarasmr . ti. Most of the rules given are not found in other dharma texts and are often specifically recognized as deviating from them. Within the text itself, the sage Bhr. gu is said to have originally composed this text. Later, the name of  nkara _ Sa was added to the title of the text in an attempt to create even greater authority for it by association with the revered philosopher. A similar process of collection and authorization must also be true of other smr. ti texts, including Manu, Yajn~avalkya, Narada, etc. Another side of dharmasastra literature is represented by the   a which helps us understand how dharma texts were transVyavaharam al   a mitted in classical and medieval India. Essentially, the Vyavaharam al is a digest of rules on legal procedure extracted from the well-known mulasmr. tis attributed to the great sages of India. The Sanskrit text, compiled in Kerala possibly in the 17th century A.D. or earlier, was supplemented in 1809 by a very straightforward commentary in Malayalam.21 Neither the Sanskrit text nor the Malayalam commentary   a describes Kerala customs at any length.22 Therefore, the Vyavaharam al cannot be used as a source for direct information about medieval Kerala.23 We must instead understand it as a product of the preservational side of dharmasastra which continually appeals back to older smr. tis.   a is not a record of Kerala customs. Based on the The Vyavaharam al   a,  selection and organization of the verses collected in the Vyavaharam al 24   it is almost certainly a summary of the Vyavaharanirn aya of Varadar a ja. . Therefore, we can say that it is a collection of verses on law and legal  procedure based on the Vyavaharanirn . aya and put together by or adopted by someone in Kerala. The text itself claims merely to be a complete, but simplified rendition of the works of the great sages.25 The collected verses may or may not represent legal practices of medieval Kerala because they have their origins in the customs of other people

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in other times. We must assume, however, that the compiler of the text would not select rules at random from the older dharma texts, but rather he would use his personal perspective on law in compiling this summary statement of the legal wisdom of the past. Therefore, we can   a is a collection of excerpts from dharmas say that Vyavaharam al astra representing what one or more Namputiri brahmins thought to be the most authoritative rules of law. The rules themselves are not Keralaspecific, but their selection was almost certainly made with Kerala society in mind. The strong manuscript tradition of this text indicates that it was a well-received collection of extracts from dharmasastra texts which were authored in other parts of India. From these details about   a,  we can see one example of how a dharma text the Vyavaharam al was collected and disseminated by brahmins in a particular geographic region.   a and Laghudharmaprakasika Taken together, the Vyavaharam al exemplify the historical processes involved in the composition and dissemination of dharma texts in medieval India. Specifically, dharma literature generally may be characterized as a record of customs presented through the idiom of sastra texts and subsequently propagated by brahmins in various parts of India. With this in mind, I can now suggest an extension of Lariviere’s thesis. Namely, once such customs had been set down in various dharma texts their status changed through continual propagation and transmission by brahmins, and they acquired an authority which in many contexts accorded these old customs the status of law in new areas. In early South India, brahmin migrations ushered in a new phase in the history of Tamilakam, including Kerala. Rajan Gurukkal has convincingly argued that the advent of brahmins and their ideologies of hierarchy to the far South was the pivotal element in the establishment of new relations of production characterized by non-kin labor, private landholding, plough agriculture, and social and occupational stratification.26 The establishment of the brahminical ‘discourse’ in South India naturally influenced ideologies and practices of law just as it affected the realms of politics, economics, and religion. Thus, through the influence of brahmins, which was especially strong in medieval Kerala,27 dharmasastra norms were adopted as the legal norms of local communities, that is dharmasastra rules once again became “local customs”. A cycle of collection (of customs), authorization (into smr. tis and other authoritative texts), dissemination (by brahmins, rajas, and other leaders), and appropriation (again by socio-political elites into regional legal systems) existed in the transmission of dharmasastra texts in

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classical and medieval India. Law is, ultimately, to be found in the final phase of this cycle, sometimes historically recoverable, sometimes not, but its intimate relationship with dharma texts and prevailing customary practices, perhaps from other parts of India, is crucial to describing both its sources and its content. Politically and socially powerful men took seriously the injunctive force of dharma texts and strove to establish their provisions as ‘real law’ in various parts of India. If we can find examples in which legal practice as represented in other historical evidence and prescriptions of dharma texts coincide to a significant degree, then we can define more precisely the influence of dharma texts on ‘real law’ and vice-versa. In this cycle of dharma literature, coherent collections of custom, though not always mutually consistent, in the form of smr. ti texts, digests, and commentaries spread throughout most of India and were established as the foundations of legal practice in many regions.28 With this understanding of the nature of dharmasastra texts, especially the ongoing cycle involved in their transmission throughout medieval India, we can proceed to employ them usefully in historical research, neither overestimating nor underestimating their value. Specifically, we can investigate the relation between the customs recorded in dharmasastra texts and the customs followed in legal documents within a particular area. In this essay, a strong correlation of the two will suggest that dharmasastra traditions were appropriated and established in medieval Kerala. Whether this establishment happened consciously or not, we cannot know, but we can at least say that it occurred through the agency of brahmins who had come to dominate the ideological and, to a large extent, the political landscape of medieval Kerala.  ASTRA  VANJERI RECORDS OF LOCAL TRANSACTIONS: TWO DHARMAS PLEDGES IN PRACTICE

The vast majority of the Vanjeri records are mortgages, contracts of loans or land-tenures, statements of accounts, or other civil transactions between two parties.29 The details of these transactions are precisely formulated in a legal idiom established throughout medieval Kerala. All of the records use a very formulaic style in which stock phrases that have a particular legal value are repeated from record to record. Nearly one-third of the published Vanjeri records are mortgage deeds of either the veppu (usufructuary) or pan. ayam (custodial) type. In this section, I provide two detailed examples of these mortgage deeds and compare the information found in the records with the relevant injunctions for

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  a and other dharmas making such records from the Vyavaharam al astra texts. The comparison demonstrates that the nature and substance, form and content of the Vanjeri mortgage types consistently possess a deep similarity to the basic mortgage types found in dharmasastra. The patterned parallelism between the information in these two types of historical document confirms the influence of dharmasastra provisions on the legal system of the Trikkandiyur sanketam. One of the most common mortgage deeds in the Vanjeri records is called veppola.30 Records of this kind of mortgage are, for the most part, simple and straightforward. Technically, it is a usufructuary mortgage. In its simplest form, one man, usually the head of the Vanjeri Illam, loans a specified amount of cash to another man in exchange for the future produce of specified lands, including paddy lands, coconut and mango groves, or other crop-yielding areas. In lieu of interest, the mortgagee is entitled to the produce of the mortgaged property until the debt is repaid. In legal terms, the debt of the mortgagor is secured by the creation of a usufruct for the mortgagee. The legal language and organization of the veppolas is precisely repeated from record to record. More than thirty such veppolas appear in the Vanjeri documents. There are no substantial differences of structure or legal jargon between any of them.31 Therefore, a single example, quoted in full, will suffice to show the structure and style of the veppu type mortgages. The following is a record of 1581 A.D.:

1. This is the record of a veppu mortgage written in the month of Met.a of the Kollam year 756. 2. It is the agreement in which the recipient Narayan. an Kecavan of 32 received seventeen accu ‘new _ Tekkineyakam in Tiruman_ nalam coins’33 from the hand of Kan. d. an Tamotiran of Morttalacceri [Vanjeri]. 3. As consideration for the received seventeen accus, Narayanan Kecavan and his younger brothers hereby give as a veppu mortgage the following property under their control: both sections of Koyaparambu (koyilparambu?)34 in Panen_ n_ at.ur desam, including the paddy field, the produce, the ghee, the pepper,35 the kat.am duty,36 the poll-tax, and the police-tax, plus all the other produce of any kind which is (usually) remitted to the owner of the parambu.37 4. Similarly, Kan. d. an Tamotiran and his younger brothers giving the seventeen accu “new coins” hereby accept as a veppu mortgage both shares38 of this parambu, including the paddy field, the produce, the ghee, the pepper, the kat.am duty, the poll-tax, and the police-tax,

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plus all the other produce of any kind which is (usually) remitted to the owner of the parambu. 5. Moreover, a kuzhikan. am39 which is in accordance with local law (desamaracati) is also given for any produce from the improvements made in the parambu. 6. This transaction has been witnessed and written by the recipient (Narayan. an Kecavan).40 As with most contracts in the Vanjeri records, this veppu mortgage is made between two brahmins. However, we also get some information regarding the taxes and tributes paid by tenants on the mortgaged property. The mortgagee’s income from the mortgaged land is actually a combination of the harvested products and by-products of the land, as well as the various taxes due to the owner or lord of the property. As the numerous footnotes above suggest, many details about land-tenure, taxation, money, etc. are still not well understood. Nevertheless, in a formal sense, we can say that the following information is provided by this record: (1) year and month, (2) nature of transaction, (3) personal name, father’s name, house name, and village or community of the parties, (4) amount of the loan, (5) detailed description of mortgaged property, and (6) a witness’s attestation. This information is repeated exactly in the same order and same legal style in all of the veppola records. Thus, the format of the records remains consistent though the names, amounts, date, and other specifics naturally vary with each new record. As in the Vanjeri records, dharma texts also describe the usufructuary mortgage and distinguish it from the custodial mortgage. The usufructuary mortgage, also called pledge, was well-known in classical Hindu law.41 It is called bhogyadhi, or a mortgage for use, in Sanskrit.  Vyavaharanirn adhi from . aya cites the following definition of bhogy Katyayana: “If a man receives a loan and gives movable or immovable property to be used for the sake of interest, it is called a usufructuary   a gives mortgage”.42 The Malayalam commentary on Vyavaharam al bullocks and horses (kal.a and kutira) as examples of movable property and paddy fields and dwellings (nilam and purayit.am) as examples of immovable property. In the usufructuary mortgage, the mortgagor gave the use of such property as the interest on the loan. According to Sternbach (1965: Vol.1, 118), “every object which was capable of yielding fruit or producing profit could be pledged as a usufructuary pledge.” Moreover, a mortgagee who did not use the specified property to his advantage lost all profit on the loan.43 The veppola records from Vanjeri contain the same provisions for usufructuary mortgages. Thus,

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given the fact that these mortgages were made primarily between two brahmin landholders and that brahmins constituted the ruling authority in this region, we can assert that bhogyadhi and veppu were the same type of mortgage.44 As further testimony, we see that the Malayali commentator on the   a clearly considered bhogy Vyavaharam al adhi and veppu to be the same. In the section dealing with types of interest, the word otti,45 another  word for veppu, is used to describe contracts of so-called “physical interest” (kayikavr. ddhi) and “profit by use” (bhogalabha). In other words, the interest on a usufructuary mortgage was to be realized through the use of the mortgaged property. These examples clearly show that the commentator considered bhogyadhi and otti/ veppu to  be the same. These two forms of interest are defined as follows: The following are examples of physical interest: (1) when an otti [usufructuary  loan] property mortgage] deed has been acquired, a man enjoys as interest [on his such as milk cows, etc., and (2) when an otti deed has been acquired, a man causes the [mortgaged] bullocks, horses, etc. to dowork for him as interest. The following are examples of profit by use: (1) when a man gives something for a house and acquires an otti deed, he enjoys [the house] as interest, (2) when  a man vacates his own house and give its to another, he receives rental fees, and (3) when a man loans out his property and acquires an otti deed, he enjoys paddy  fields or dwellings.46

These two forms of usufructuary interest are distinguished from periodic interest, kalikavr. ddhi, and fixed interest, karitavr. ddhi, which are reserved for custodial mortgages in other dharma texts.47 The usufructuary mortgage called otti or veppu is, thus, separated from other types of  loan contracts by the type of interest to be realized, namely the use of the mortgaged property itself. The uniformity of the veppola records presupposes a vibrant legal system in which the legitimacy of contracts must be established through appropriate legal documentation. As these records illustrate, a wellknown set of legal practices, known as the desamaryada, provided rules for the establishment of civil contracts of various kinds. The range of such contracts is similar to the range spelled out in dharmasastra literature. Indeed, the veppu type of mortgage was almost certainly adopted from very old dharmasastra rules concerning pledges. This close relationship of legal practices in the Trikkandiyur region and the injunctions of dharmasastra also extends to the custodial mortgage. In the Vanjeri records, custodial mortgages, or pan. ayam . s, are found in documents called by the generic name kariyam, or “deed”. Though

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other types of transactions are also labeled k ariyam, the majority are records of custodial mortgages. In a custodial mortgage, the creditor gives a specified amount of cash or paddy to the debtor. The debtor, in turn, delivers a specified piece of land to the creditor as a security for the debt and also agrees to pay interest on the loan. Records of pan. ayam . mortgages are phrased in the same general style of veppu mortgages, but the stock phrases and contents are different. In most records, the land given as security is not specified, being replaced by a stock phrase stating that the property has been previously declared.48 As in the case of veppu mortgage above, a single example will illustrate the nature of the pan. ayam . contracts. A record of 1632 A.D. reads as follows:  This is a kariyam (deed) made in the month of Dhanu of the 1. Sri. Kollam year 808. 2. It is the agreement in which the recipient Cattan Kota Kotakurippam received one hundred sixty ‘new coins’ from the hand of Tamotiran Tamotiran of Morttalacceri. 3. The consideration for the loaned 160 ‘new coins’ is as follows: [the debtor] hereby delivers as a security the parambu, or garden, land on which he resides and promises to deliver annual interest on the 160 at the rate of half per ten (5%), and [the creditor] hereby accepts these terms. 4. Thus it has been witnessed by Kelacca Menon of Putukkut.a Nat.u and Kel.appa Un. ittiri of Pallar. 5. The document was written by the hand of Vat.akkum at.t.a . p Un. n. ekkan.49

In addition to the uniformity between the pan. ayam deeds, we can also see the similarity of pan. ayam . documents to the veppola documents in regard to the style of language and the fixity of certain stock phrases for expressing legal obligation. The widespread use of precise legal jargon in the Vanjeri records indicates that there was a certain efficacy associated with the use of such jargon. Presumably, carefully constructed documents would constitute an undeniable proof in cases of dispute. Unfortunately, we have no records to that effect. Regular court proceedings do not appear in the Vanjeri records. Nevertheless, it is clear that the precise legal style of these records was intended to prevent violations of the terms of contract and to provide written evidence as to those terms. 50 The pan. ayam . records from Vanjeri are good practical examples of the classic gopyadhi, or pledge for custody, in dharmasastra literature. In order to secure a debt, a person pledges some valuable property,

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movable or immovable, as a security. The creditor retains possession of the pledged property until the principle and interest of the debt have been fully paid, but he is not to use the property in any way. The   a defines this pledge as follows: “The commentary on the Vyavaharam al name gopyadhi is given to a pledge if it is given only for custody as follows: [the debtor] (1) accepts property as a debt, (2) agrees to the interest, (3) writes out a receipt for the pledge, and (4) says ‘Though accepting this pledge, you shall not use it’ ”.51 With the exception of the admonition not to use the pledged property (unnecessary because the nature of the pan. ayam . contract is known to   a and the both parties), the procedure advocated by the Vyavaharam al procedure adopted in the Vanjeri records for making custodial mortgages is the same. Whether or not both parties who made such contracts were consciously following rules of dharmasastra, the fact remains that both documents are obviously part of the same legal tradition. Texts like   a may have specifically been referred to for points the Vyavaharam al of law on occasion, but more importantly, the old customs recorded in dharmasastra’s prescriptive idiom were adopted by the people of Vanjeri for making their own contracts. After a careful study of the Vanjeri records, I have concluded that a mortgage for use, called veppu or otti in Malayalam, is distinguished  from a mortgage for custody, or pan. ayam . , and that these two mortgages are instantiations of mortgages found in dharmasastra texts. William Logan (1887: Vol. II, ccxi, ccxv) came to a similar conclusion in his study of these mortgages. However, the Malayalam usage is less than clear in certain cases. For example, there are two documents from 52 Vanjeri in which the word pan. ayam . is substituted for the word veppu. The two documents contain all of the stock phrases found above in veppolas, and they are clearly records of usufructuary mortgages. But, in contrast to the majority of veppu records, the term pan. ayam . is used instead of veppu. Twenty out of twenty-two instances of the word 53 pan. ayam . indicate that it was reserved for custodial mortgages. I have found at least one other instance from medieval Kerala where the 54 term pan. ayam . appears in a usufructuary mortgage document. In most cases, however, the term pan. ayam . was restricted to custodial mortgages in other parts of Kerala in this time period. In the Vanjeri records as well, such a restriction is the rule, though two exceptions have been noted. Two documents written by the same scribe within six months of each other provide a good example of the conscious distinction between usufructuary and custodial mortgages in the Vanjeri records. 55 The first

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is a veppola record from August 1567 which specifies in a stock phrase the types of produce to be enjoyed by the mortgagee. In addition, the lands are “given as a usufruct”, technically expressed by the phrase “at.akki veccu kot.uttar”. In the second record, called simply kariyam . (deed), lands are specified, but the list of “enjoyments” is not included and the lands are given “pan. ayamayi”, or “as a custodial mortgage”. The fact that the same scribe wrote both of these records within six months of each other indicates that there was a meaningful 56 difference between veppu and pan. ayam . mortgage documents in the Trikkandiyur region, and probably throughout medieval Kerala. Otherwise, the scribe in this case, and in all records, would not have used distinct language and legal phrasing when writing down these two different contracts. Before concluding this section, I want to point out that the form of the documents and the information included also conform to the rules for writing documents found in dharma texts. According to the   a,  the following information should be provided: (1) Vyavaharam al year, month, fortnight, and day, (2) nature of transaction, (3) personal and father’s names of the parties and others involved, (4) amount of the loan and interest, (5) the signatures of the parties, (6) witness’s name.57 The Smr. ticandrika states that all necessary boundary marks of the mortgaged land, including the name of the region, village, and field, must be written into the mortgage contract in order for it to be legal.58 When compared to the examples from Vanjeri above, the correspondence seems too exact to be a coincidence. The standards for written documents must have been appropriated or inherited from dharmasastra. At the very least, we can say that, from an historical perspective, the Vanjeri records and dharmasastra traditions agree as to the form and content of legal documents. All of the contractual records of Vanjeri include this information, indicating that it was compulsory to write down these details in order to make a contract legitimate. While the range of legal practice recorded in the Vanjeri chronicles is broad, it is not as broad as that of the dharmasastra tradition. Therefore, certain parallels, particularly those relating to court proceedings, are impossible to draw or deny. However, the examples of mortgages above are strong circumstantial evidence to suggest that other practices   a but not found in the Vanjeri advocated by texts like the Vyavaharam al records may also have been current in the Trikkandiyur sanketam. The customs of Vanjeri and dharmasastra norms converge and overlap on many points of law. In fact, custom and dharmasastra represent

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co-existing and interacting modes of classical Hindu law. It will be the task of further research to discover other precise parallels between records of local legal practice and dharmasastra and to interpret these parallels in terms of the legal history of Kerala and of India generally.

LAND SALES IN THE VANJERI RECORDS: LOCAL INTERPRETATIONS OF  ASTRA  DHARMAS

Another kind of transaction in the Vanjeri records is the sale of land. Though such permanent transfers of land were relatively less frequent than mortgages, they nevertheless constituted an important mode of property acquisition for the temple and the Vanjeri lineage. The records of these transactions help to clarify further the relationship between dharma literature and practical law in the Trikkandiyur region. This section examines land sales in detail and attempts to understand the procedures and ideologies of selling land in Vanjeri with the help of relevant dharmasastra texts. The selling of land in medieval Kerala was conceived of as the alienation of the uppermost rights of ownership over some property in exchange for a fixed amount of money. The transfer of such rights, called janmam or at.t.iper rights, was recorded in a special class of transactions called at.t.ipettola. In order to properly understand the nature of these  uppermost rights, we must first briefly consider the concept of property in India. In a seminal essay, Derrett (1962) discusses the two most important aspects of the Indian concept of property – svatva and sv atantrya. Svatva literally means ‘own-ness’ and is the closest Sanskrit equivalent for ‘property’. However, in contrast to the Western notion of property, multiple svatvas can exist in a single piece of property. According to Derrett (1962: 86), The distinctive feature of the Indian concept of Property, therefore, is the capacity of svatva to exist in favour of several persons simultaneously, not only identical  [rights] being shared, as in the case of co-owners, but especially where adhikaras  are inconsistent, and mutually exclusive : : : . In respect of a piece of the adhikaras land there might be as many as five concurrent svatvas : : :

Thus, a lord, a landowner, a mortgagee, a sub-mortgagee, and a tenant might all possess different svatvas, or ‘ownerships’ of the same piece of land at the same time. However, only one of them possesses the second quality of ownership in India – svatantrya, the power, freedom, and ‘independence’ to sell, give, mortgage, or otherwise manipulate or alienate property. Only a single individual possesses svatantrya, though

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his ‘authority’ is limited by the svatvas of others in the same property. These others cannot change the status of the property because they have no svatantrya, but they can partially inhibit the “owner’s” rights over the property. To what extant an “owner’s” powers of alienation were actually limited in practice in classical and medieval India is difficult to determine. However, this section provides some indications that at least a formal recognition of other svatvas in a piece of land was required in medieval Kerala. In fact, I suggest that the idea of svatantrya is precisely that of janmam or at.t.iper, the Malayalam words used to describe the rights which are transferred in a sale of land. Moreover, the various land tenures, mortgages, and requirements for outside consent to a contract that existed in medieval Kerala constituted the legal guarantees of the different svatvas inhering in a piece of property. Thus, the Indian concept of property as described by Derrett on the basis of dharmasastra was the foundation of proprietary relationships in medieval Kerala. For example, the sale of land in medieval Kerala can be characterized as a transfer of the svatantrya over a designated piece of land from one party to another, but limited by the other possessors of svatva, such as mortgagees, relatives, and the overlord of the region. At least nine of these transactions are found in the Vanjeri records. 59 The records of land sales exemplify the subtle, more indirect ways in which dharmasastra literature influenced the legal system of the Trikkandiyur region. In this section, we will see that the procedures for and ideas about land sales in the Trikkandiyur sanketam had clear connections to prescriptions and understandings of dharmasastra even beyond general notions of property, but that the implementation of dharmasastra in this case occurred through a localized interpretation of the dharma texts, one that recognized the traditions of the Namputiri brahmin community. Such local interpretation of dharmasastra by the leaders of the community was an integral part of the establishment of the local law. This use of dharma texts indicates that they were not meant to be imported as complete and final statements of law but rather as aids to the implementation and administration of the law. The final word on law rested with the local brahmin leaders whose responsibility it was to determine the proper course of law with reference to dharma texts, regional practices, and local customs. In the case of land sales, the local brahmin leaders established, or continued, a method of transferring land that was both acceptable to the Namputiri community and conformable to dharmasastra injunctions.

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As with the mortgage types above, the legal jargon of at.t.ipettola  deeds is consistent from record to record, making a single example sufficient to understand the general pattern of such documents. A record from 1642 A.D. reads as follows: 1. This is at.t.ipettola record written in month of It.ava of the Kollam  year 817. 2. Kecavan Kecavan of Karipuram in Tiruvalur and his younger brothers give with water the at.t.iper rights over the following: (1) the mango grove at Kon. am in the Tiruvur desam . , (2) the riceseedling land below Kuruvat.i, and (3) the tank-land which is east of the Tiruvam tank; and they receive the market price as determined by a group of people.60 3. Tamotiran Tamotiran of Morttalaceri and his younger brothers receive with water the stipulated lands. 4. Thus, it is written by the hand of It.t.ikkumara Menon of Olikkara. 5. The witnesses are Katalappa Nayar of Vakkat.u, Un. ittiri of Pallar, It.t.iccappa Menon of Padikkal, and the local chieftain. 61 6. The elder Vet.t.am . lord’s writ [of consent] has also been obtained. From this record, we discover several important details about selling land in medieval Kerala. First, there was a ritual of pouring water associated with the transfer of janmam rights over a property. Second, the younger brothers of the persons named are also described as parties to the transaction. Third, a group of people fixed the price for the land being sold. Fourth, several witnesses, including the local chieftain, are usually mentioned. And finally, a writ of consent from the political overlord, in this case the Vet.t.am Raja, was often obtained for the transaction. The general conditions of land sales found in this record can also be found in dharmasastra texts dealing with the sale of immovable property. By discussing each aspect separately, the close relationship of legal practice in Trikkandiyur and dharmasastra literature will be seen. The ritual of pouring water was originally associated with giftgiving, and it appears in early dharmasastra texts. It is mentioned in the 62 The tradition continues  dharmasutras of both Gautama and Apastamba. in later dharma literature but seems to evolve a restriction to valuable gifts, especially immovable property, in medieval commentaries and   a also includes a rule that all proper gifts digests.63 The Vyavaharam al should be preceded with the pouring of water,64 but the most relevant  . ara in which the connection between discussion comes from the Mitaks giving land and selling land is described.

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In most dharmasastra literature, the sale of land was discouraged because it meant the division or the complete loss of joint family property, but it was nevertheless permitted.65 However, sales of land are regularly, though not frequently, referred to in medieval dharmasastra texts. Vijn~anesvara discusses the matter at the end of his introduction to the chapter on inheritance. He states, Moreover, there is the rule ‘Land shall be transferred by means of six things: the consent of one’s (1) village, (2) relatives, (3) neighbors, and (4) heirs, as well as the giving of (5) water and (6) gold.’ Among these, remembering the rule which states, ‘Acceptance [of gifts] should be done publicly, especially for immovable property’  n~avalkyasmr. ti, 2.176), the consent of the village should be regarded as only for (Yaj the purpose of publicizing the transaction and not because the transaction would be invalid without that consent. However, the consent of one’s neighbors has the purpose of eliminating boundary disputes, while the purpose of the consent of relatives and heirs is stated only by the phrase ‘with the giving of gold and water’. What I mean is that because the sale of land is prohibited by such rules as ‘The sale of land is unknown, but it may be mortgaged with permission’ and because gift-giving is praised by such sayings as ‘He who receives land and he who gives land – both of them, being disciplined, make merit and shall go to heaven’, when a sale must be done, the sale of immovable property also should be accomplished in the form of a gift, with the giving of gold and water.66

Though this passage makes several points regarding the sale of immovable property, we are interested presently in how the ritual of pouring water came to be associated with sales of land. Vijn~anesvara here suggests that because sales of land are technically prohibited by certain smr. ti texts, land sales should be disguised as gifts and, therefore, the rituals accompanying gift-giving should also be performed. While Vijn~anesvara’s theory may or may not be historically accurate, it is clear that he knows and has observed the ritual of pouring water when land was sold. In this passage, he is providing a justification of the custom which he has witnessed. The manner in which Vijn~anesvara describes the elements of land transfers provides some insight into the method of incorporating and legitimizing observed legal practices into a dharma text. Though the ritual of pouring water in the context of gift-giving was well-known to Vijn~anesvara from other dharma texts, the same ritual in the context of sales of immovable property, a practice prevalent not only in Kerala, but over South India,67 was apparently not to be seen in dharmasastra. So Vijn~anesvara takes two passages from dharmasastra and interprets them in the context of a custom which he knew in practice. His hermeneutical maneuver legitimizes this custom while simultaneously prescribing it as dharma. In the end, the ritual of pouring water when selling land is justified as an act of dharma. As such, it could provide legitimacy to this ritual in regions where it was already practiced or it could be a

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model for regions where it was not practiced. As Robert Lingat (1973: 204) has stated, An unorthodox [i.e. unsanctioned or illegitimate] rule of custom has no chance of extending its domain. It remains a particularity, a peculiarity. By contrast, the rule of dharma [a sanctioned, legitimated custom] has an unlimited power of radiation. It offers itself as a model to every group. It fills the gaps in custom and tends to insinuate itself into the customary structure. And once it is established there it is fixed thereafter; it is and remains dharma, the group’s law. (brackets added)

In this case, Vijn~anesvara extracts and legitimizes a ritual practice prevalent in many parts of India, and he thereby turns it into a rule of dharmasastra. He also provides us with a plausible historical explanation for how and why the ritual of pouring water came to be associated not only with gifts of land but also with sales of land, that is with all alienations of land – the merit and virtue associated with gift-giving rituals was extended to other kinds of alienations, namely sales. Whether or not landholders in Kerala were consciously following dharmasastra texts when they sold their at.t.iper rights with the ritual of pouring water is neither important nor ascertainable. The similarity of the two legal traditions and the historical priority of dharmasastra injunctions regarding this ritual are sufficient to establish that the brahmin authorities of the Trikkandiyur region relied on dharmasastra traditions in the formation and practice of their local law.68 Another important detail of the at.t.ipettola records is the explicit  mention of the younger brothers of the transacting parties. The reason for mentioning the younger brothers of the Namputiris who were making a contract is not specified in the Vanjeri records. However, contrary to most scholarly opinion, these records and other sources indicate that the younger brothers had certain rights, i.e. they possessed a svatva, over the joint family property which were part of the overall “ownership” rights on the land. Therefore, the younger brothers also had to consent to any sale or mortgage of taravat.u, or joint family, property. Both scholars and officials have repeatedly asserted that a very clear rule of inheritance existed among Namputiri brahmins – namely, that the eldest brother was the only son allowed to marry within the Namputiri community and he was the only son who had any claim to the inheritance.69 According to this rule, the younger brothers had no right to either marriage or inheritance. Despite these assertions, the Vanjeri documents are at least some evidence against a simple rule of primogeniture among Namputiris. From this evidence, it appears that the younger brothers in a Namputiri family did possess some claim, some svatva, over the joint family

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property. Otherwise, there is no clear reason to mention them at all. Both mortgages and land sales in the Vanjeri documents, including the examples above, indicate that the younger brothers had to be mentioned as parties to the transactions. The inclusion of the younger brothers demonstrates their stake in the joint family property which, apparently, could not be given or mortgaged without their consent. Moreover, even in the Vanjeri records, two brothers of the Vanjeri family appear to have made transactions on behalf of the family. Though the dating is not conclusive and there is a problem with the editing,70 Documents 114A through 117A describe transactions between 1813 and 1820 A.D. by both Morttalacceri Damodaran Raman and Morttalacceri Damodaran Devan, who can only be brothers by virtue of their names. Since they appear to be brothers, either both made transactions independently or one brother succeeded the other – it is impossible to tell which from these four records. In either case, the situation would be impossible according to a strict rule of primogeniture, providing another small piece of evidence to suggest that primogeniture was not always and perfectly followed by Namputiri families. Given that inheritance laws are frequently complicated by both social and family pressures, it is not surprising to find that Namputiri families were not able, or even sometimes willing, to follow the rule of _ primogeniture, even though texts like Sankarasmr . ti (1906: 107) uphold it as an ideal. In general, I believe that preference was given to the eldest Namputiri son in matters of marriage and inheritance but that the younger sons also possessed a claim on or held some rights over the ancestral family property. The nature of this claim or right is not yet understood.71 Thus, while primogeniture is the rule even in the Vanjeri documents, a traditional understanding of primogeniture fails to account for the apparent rights of younger brothers in alienations of joint property, as well as occasional situations in which a younger brother assumed control of the family property. Turning to dharmasastra texts, we find that dharmasastra authors were also concerned with questions of primogeniture versus equal partition and whether the consent of rightful heirs was necessary for alienations of joint family property. Dharmasastra texts demand that transfers and land take place with the consent of those people with some claim to the land. The most basic rule is that joint property cannot be given as a gift, mortgaged, or sold without the consent of the undivided heirs to the property.72 The remaining question is who is a legitimate heir to joint family property. In dharmasastra literature, this question is extremely

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contentious because many different arguments have been made as to the proper method of determining legitimate heirs.   a omits several In its discussion of inheritance, the Vyavaharam al  passages contained in its exemplar the Vyavaharanirn. aya which disparage primogeniture but also retains verses supporting equal partition. In so doing, the commentator presents unequal partition as one of the legitimate modes of inheritance.73 Consider, for example, the following verses in support of the elder brother taking the entire inheritance: A man becomes a putrin (a man with sons) and discharges his debt to his ancestors only with the birth of his eldest son – that is why he (the eldest son) deserves everything. (1058) Just as a father cares for his sons, so an elder brother should care for his younger brothers, and they should properly behave toward the elder brother as if they were his sons. (1060) The elder brother alone should receive all of his father’s wealth without remainder. The other brother should live by his support just as they had done with their father. (1061)74

  a,  in contrast to both its exemplar Clearly, Vyavaharam al   . ara,  permits, or even prefers, primogenVyavaharanir naya and Mit aks .  iture with regard to inheritance. The Vyavaharanirn . aya, following the  . ara,  suggests that though unequal partition is found in some smr. ti Mitaks texts, it is a despised practice (lokavidvis. t.a) in the Kali age, and should,   a to therefore, not be followed.75 We would expect the Vyavaharam al follow its exemplar in this condemnation, but precisely because primogeniture was not a despised practice in Kerala, the compiler of the   a omitted certain sections of the chapter on inheritance Vyavaharam al  found in Vyavaharanirn . aya in order to make his collection both applicable and viable in Kerala. The fact that unequal partition or unilineal   a provides some inheritance is not condemned by the Vyavaharam al evidence that this collection of dharmasastra rules was made with Kerala society in mind.   a leaves the question open to interUltimately, the Vyavaharam al pretation. Both verses supporting and condemning primogeniture are found, making it an option according to mımam a hermeneutical rules. . s In other words, both practices were legally acceptable to the author   a,  and both practices are found in the Vanjeri of the Vyavaharam al documents as well. The localized expression of dharmasastra rules regarding necessary consent for alienations of joint property must be understood in the context of the ongoing debate concerning primogeniture. While some form of primogeniture seems to have been a standard for the Namputiri

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community, the Vanjeri documents suggest that the younger brothers possessed certain rights (adhikara) that had to be considered by the elder brother when selling, mortgaging, or gifting joint family property. It seems likely that these rights go beyond questions of inheritance alone, on which I have chosen to focus here. But whatever the case may be, and despite prevalent scholarly notions of strict primogeniture among Namputiris, it appears that the dharmasastra rule that anyone with claim to the joint family property must consent to its alienation was fulfilled by the mention of the younger brothers of the transacting parties in the Vanjeri records. Though no clear-cut conclusions regarding the necessary consent of undivided heirs or Namputiri inheritance practices generally can be made at this time, the dialogue between dharmasastra literature and practical law emerges from the comparison between the Vanjeri documents and relevant dharma texts. In this case, dharmasastra rules regarding equal partition and the rights of sons or other relatives over joint property did not make much sense in the region of Kerala, though they certainly did in other parts of India. Instead, a different interpretation of dharmasastra, one that focused on dharmasastra provisions for primogeniture and one that was adapted to local legal practice, prevailed in the Trikkandiyur region.76 It is in this local interpretation of dharmasastra rules regarding necessary consent that we observe how dharmasastra ideas and prescriptions were incorporated into and adapted to prevailing legal practices in a region. Both traditional Namputiri inheritance laws and dharmasastra rules requiring the consent of persons with claim to joint family property are satisfied by the form and content of the at.t.ipettola  records. Together, these two legal traditions, both locally interpreted, formed the local law of the Trikkandiyur region. In addition to requiring the consent of the younger brothers and the ritual of pouring water, records of land sales in the Vanjeri archives also state that the price of the land should be the “market price” (annu perum . artham . , lit. “the price you could get that day”) or the “market price as determined by a group of people (nalar)”. In both cases, it appears that prices were determined locally, whether by general consensus or by a specific appraisal of the land. In at least one dharma text, neighbors are said to determine the price of immovable property and other ‘big-ticket’ items such as cows. Katyayana states, “It is said that the price of fields, gardens, houses, etc. as well as of bipeds and quadrapeds should be fixed by an assembly of neighbors who know the area and who shun sin”.77 Thus, dharmasastra

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authors were also aware of the practice whereby the price of land was fixed locally, by neighbors assembled for that purpose. The sale of land in Trikkandiyur also required the presence of several witnesses. In our example above, four witnesses appear. Though not all at.t.ipettola deeds record four witnesses, a minimum of at least two  seems to be required for such transactions. Some of the Vanjeri records do not record any witness at all, other than, presumably, the scribe. Thus, a requirement of at least two witnesses, one or more of whom is often a local chieftain, indicates that sales of land should be public and that the appropriate authorities should be cognizant of the transaction. Perhaps the most relevant dharmasastra injunction to this effect  n~avalkyasmr. ti: “Acceptance should be done publicly, comes from the Yaj especially in the case of immovable property”. 78 The Smr. ticandrika says that ‘publicly’ means in front of witnesses. The commentary on   a also defines ‘publicly’ in this way and adds that without Vyavaharam al witnesses, disputes may arise. One practical reason for the public transfer of immovable property, as dharma texts suggest, was surely to avoid disputes over the property in the future. Another reason, unstated in dharmasastra, was that the taxes on the land had to be properly assessed and extracted from the responsible owner and his tenants. Though we cannot say certainly that the tendency to have more witnesses in a deed of land sale in the Vanjeri records is due to the influence of dharma texts like the one above, we can say at least that both of these historical documents record the preference for very public alienations of joint family property. It is another mark of the commonalities between the legal traditions represented by these two types of document. Finally, records of land sales in Trikkandiyur also often mention that the consent of the overlord was obtained for the transaction. Though the vast majority of property transactions do not involve the overlords of the Trikkandiyur sanketam, in the case of the outright sale of land, one or more of the sanketam’s overlords usually consented to the transaction. In the technical terms of the Vanjeri records, when the janmam, or the uppermost rights over land (also known as at.t.iper), were transferred from one party to another, the consent of either a desakoyma, or local chieftain, or the Vet.t.am Raja was usually obtained. Six out of the nine at.t.ipettolas record either the consent of the local chieftain or the  Vet.t.am Raja or both.79 The other three may be the result of oversight or scribal error, but it is also possible that the necessity of obtaining the lord’s permission ebbed and flowed with the political power or political strategies of the overlord. In the example above, the Un. ittiri of Pallar

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also appears. This family controlled the Kali temple in Vairamkot.u to which many of the non-brahmins in the Trikkandiyur area did and still do worship. This is yet another local leader who was regularly involved as a witness to the sale of land. By witnessing, we may assume, the Un. ittiri also gave his consent, though this is not explicit mentioned as such. Thus, it is clear that it was a common practice to obtain an overlord’s written consent and, more generally, to apprise all the important political figures in the area when making a sale of land. Though I have not come across a dharmasastra text which specifically states that the consent of the ‘king’ is required when land is sold, there are some indications that this practice was not limited to Kerala. For example, Kane (1975: Vol. 3, 497) gives several epigraphic instances in which “the villagers and headmen were consulted and asked to mark off the land to be sold”. “Headmen” here would not correspond to the Vet.t.am Raja, but would encompass the desavazhis, or local chieftains, of medieval Kerala. Derrett (1962: 87, f.n. 318) goes much further than Kane in stating, “the fact that the king was expected to confirm old grants and that only he could grant land to a deity, so that the bhaumika had to take his consent before alienating his interest in it, and the fact that even lesser grants made by others were made in reality with his authority : : : show which way facts really lay”. Derrett also points to the king’s universal right to tax the land under his control. Derrett’s evidence for his assertions is limited, however, and I suggest that he is universalizing the successes of a few powerful kings, e.g. the Cholas of Tamilnadu, who controlled unusually large areas when compared to the typical “Hindu” raja. Nevertheless, Derrett’s general assertion that the king possessed certain rights over the land which had to be considered when land was sold seems to be correct. Not all kings uniformly asserted these rights at all times, perhaps due to the political consequences of an attempted display of authority. The practice of obtaining an overlord’s consent to sell land did not become a part of dharmasastra, but it does appear to be common to other parts of India, where similar ideas about the svatva of the king in the land were found. On the basis of the Vanjeri records alone, no clear motivation for obtaining the king’s consent can be determined, and thus, no clear explanation of the practice can be given here. In the foregoing section, I have described in detail the relationship of dharmasastra prescriptions relating to land sales and records of land sales found in the Vanjeri archives. A general pattern emerges when we take a broad look at the two types of document. The practice of selling land in medieval Kerala was based on localized interpretations of

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general dharmasastra principles concerning property, ritual, consent and publicity, and price. In other words, the fundaments of a system of land sales can be found in dharmasastra, but the practical implementation of those ideas occurred in the context of medieval Kerala in which strong traditions of religious ritual (pouring water), inheritance (a preference for some form of primogeniture), and price-fixing affected the way dharmasastra ideas were appropriated. The Namputiri brahmins were the ultimate arbiters of the legal conventions pertaining to land sales; as the predominant landholders in this period, they themselves accounted for most of the buying and selling of land, often through the intermediary of the temple. The legal conventions regarding alienations of land, whether by sale or mortgage, were part of the desamaryada, the local law, of Trikkandiyur. Dharmasastra literature played an important, though not all-encompassing role in the continuous construction of the desamaryada’s conventions regarding land. From the records of land sales in Trikkandiyur, therefore, we can observe the subtle, but clear impact that dharmasastra ideas had on the ideological and practical aspects of selling land in medieval Kerala.

THE ROLE OF POLITICAL OVERLORDS IN THE LAW OF THE TRIKKANDIYUR SANKETAM

Records of contracts between two parties are not the only kind of records found in Vanjeri. References to the overlords of the Trikkandiyur sanketam, namely the local chieftain, the Raja of Vet.t.am, and the Zamorin of Calicut,80 are regularly encountered in the records. In this section, I examine the external relations of the sanketam and its executive committee, the yogam. The relationship between the yogam council of the Trikkandiyur sanketam and its overlords is more political and economic in nature than legal. Nevertheless, local chieftains, the Raja of Vet.t.am, the Zamorin of Calicut, and even occasionally the Raja of Val.l.uvanat.u appear in a judicial capacity in the Vanjeri records. In this section, I will provide examples of such intervention and interpret the judicial function of these overlords. In general, I agree with the conclusion of M.G.S. Narayanan (1987: xvii) that “the Sanketam depended very much on the neighboring chieftains for everything including the constitution of their Yogam and the maintenance of law and order in their territory”. Therefore, the autonomy of the sanketam, even from a legal perspective, was limited in several ways which I will presently describe.

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The clearest and most prolific type of legal authority which the overlords of the Trikkandiyur sanketam exercised was the control over the police. There were several individuals and groups who shouldered the burden of providing police protection for the Trikkandiyur area. The most important of these was the Kovil Nambi, an appointed agent of the Vet.t.am lord who may have also been a relative of the latter. The Kovil Nambi was responsible for the execution of punishments in the sanketam and also assisted in the rendering of judgments. The Kovil Nambi, like other members of the samanta (ks. atriya) caste,81 maintained a group of Nayars to act as his personal military force and the muscle behind his political and legal authority. Local chieftains maintained small groups of Nayars for similar purposes. Both the elder Vet.t.am lord and the younger lords also had functionaries, called k aryakkar, who occasionally perform judicial functions in the Vanjeri records. In addition to these groups, there were also resident police officers, called kavalkkar, appointed by the Zamorin of Calicut, the Vet.t.am lord, or Val.l.uvanat.u lord from among the Nayars in their service.82 Each of these individuals and groups played different roles within the police system of the Trikkandiyur region, but the sheer number of different policing agents indicates the desire on the part of the overlords to have a presence in the sanketam. Though the Trikkandiyur sanketam was under the control of the Zamorin of Calicut, the elder Vet.t.am lord and his brothers possessed a more meaningful political control over this region. As the Zamorin’s territory included most of Malabar, it was practically impossible for him to personally attend to the administration of justice in the nat.us and desams under his control. Thus, the nat.uvazhis (rulers of the nat.u), such as the Raja of Vet.t.am (Vet.t.attu-nat.u), acted as the kings over these smaller geographic areas. In the Trikkandiyur region, the Kovil Nambi, as the representative of the elder Vet.t.am lord, was the executor of punishments. Several records show the Kovil Nambi as the administrator of the king’s dan. d. a, his ‘staff’ of punishment. The Kovil Nambi appears in almost every record of punishment, including religious expiations.83 He is most often mentioned as the person who actually carries out the punishment determined by the yogam council and others. In the Vanjeri records, we observe that the Kovil Nambi was responsible for punishing the convicted criminal in cases of false arrest, murder, and theft.84 In a case about a murdered brahmin, however, the Kovil Nambi was physically unable to carry out the punishment. According to the record, “the Kovil Nambi provided written authorization for the ‘application of the law’ because he was unable

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to walk due to illness”.85 The fact that the execution of punishment by someone other than the Kovil Nambi required his prior permission reveals that he himself held the right to punish. The same record also shows that local authorities had the right to punish criminals in their jurisdiction as long as the overlord’s consent was obtained in advance. Dharmasastra texts contain precisely the same provisions for the punishment of criminals by local groups, who did not possess the right to punish, but were allowed to do so by permission.86 Thus, through his agent the Kovil Nambi, the Vet.t.am lord exercised the right to punish as it is traditionally ascribed to so-called Hindu kings. The figure of the Kovil Nambi was the expression of the Vet.t.am lord’s authority, a symbol of this king’s power to punish. Dharmasastra refers to the king as the “overseer of the laws and executor of punishment”.87 He is responsible for both the adjudication and enforcement of the law, though brahmins should also be involved in the rendering of judgments. This ideal Hindu king has been fully described many times and need not be characterized again here.88 The interesting point to note, however, is that the division of juridical labor in the Trikkandiyur sanketam is precisely that spelled out by dharma- and arthasastra texts – for practical reasons, the brahmins, in this case the yogam council, were primarily responsible for the investigation and adjudication of crimes and conflicts, while the king, or his functionary the Kovil Nambi in this case, carried out the punishments decreed by the yogam council and, occasionally, other leaders. The other policing agents in the Trikkandiyur region were also apointees of the several overlords of this region. References to police personnel such as “the Kovil Nambi’s Nayars”, “functionaries of the Vet.t.am lord”, “a policeman who was the agent of the Zamorin”, and “an agent of the Val.l.uvanat.u (lord)” are regularly encountered in the Vanjeri records.89 Nayars are almost always identified by the overlord in whose service they lived and worked. Among these different groups, the kavalkkar, or resident police officers, seem to have been charged with the daily duty of guarding and watching over the sanketam property. In other words, they were responsible for the prevention of crime through their constant presence in and around the sanketam. They had little to do with higher-order legal processes such as the determination of guilt, the punishment of convicted criminals, etc. The other policing agents, who were primarily personal attendants of a lord in the region, had separate duties in addition to the responsibility of protecting the sanketam. Thus, their duties only occasionally involved lower-order policing activities such as arrest, confinement, etc. Both of these policing groups, however,

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were appointees of the sanketam’s overlords with differing degrees of responsibility and accountability to their lords. References to police are not frequent in dharmasastra and are mostly confined to discussions of arrest and theft. However, all the references agree that policing agents are and should be appointed by the ‘king’. The distinction between the resident police officers and personal attendants  of the overlord is also made. Quoting a passage from Apastamba, the   a states, “The king should Malayalam commentary on Vyavaharam al appoint honest and upright police (kavalkkar) in towns and villages  . ara adds, “Policing agents to protect them from theft”.90 The Mitaks  (grahaka) such as the king’s attendants (rajapurus. a) and watchmen (sthanapala) should arrest a man if several people testify that he is a thief”.91 Discussions of arrest in dharma texts also stipulate that arrest is the privilege of the overlord and that arresting agents should be his appointees.92 Thus, parallels to the organization of the police system in the Trikkandiyur region are easily available in dharma texts, though there is little elaboration on the police, their functions, or their organization. One inference about the police and their lords can be made on the basis of dharmasastra, namely that lords extracted taxes from their subjects for providing police protection to them. According to Kangle (1965: Vol. III, 239), “Traditionally, dan. d. a and kara appear as the two sources of remuneration which the king is entitled to receive in  return for the protection he grants to the people”. The Arthasastra 1.13.6–7 also states that the lord secures the well-being and safety of his subjects by means of taxes and duties on land and trade goods.93 In other words, the people were to pay taxes in order to obtain the lord’s protection, and as we have seen, the lord provided protection in his realm through his personal attendants and resident police officers. Manusmr. ti states, As a result of properly protecting his subjects, the ‘king’ receives a sixth of whatever they receive through Vedic recitation, sacrifice, gifts, or worship. When a king protects his subjects according to dharma and executes people who deserve to be killed, it is as though he is sacrificing every day with a hundred thousand sacrificial gifts. A king who does not provide such protection, but still collects taxes on crops, land taxes, tolls and duties, daily offerings, and fines, soon goes to hell.94

The metaphor of the sacrifice in such contexts is, according to Glucklich (1988: 67), “not merely an embellishing literary device, and it reflects a conscious use of the sacrifice as a powerful ‘root metaphor’ or  ‘conceptual archetype’ by means of which the sastris formulated their insight that justice is more than a social institution, and rests on religious considerations as well”. The duty of protection was the principal dharma

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of a lord and as such involved both social and religious obligations and rewards, the latter including material gains in the form of taxes as well as religious merit. Medieval dharmasastra texts also carry forward a general connection between tax collection and police protection. According to Apararka, “The purpose of collecting taxes is the protection of the people. Because any time a man gives property it is connected with his self, and in the case of paying taxes, there is no other purpose than selfprotection. So, therefore, protection of the people should be established by means of tax collection”.95 Though explicit references to police are rare in dharma texts, it is clear that most of the lord’s tax revenue was to be used for the protection of his subjects, which necessarily implies the employment of police to effect the security of the lord’s domain. In the Vanjeri records, two synonymous terms, k avalpalam . and raks. abhogam, are used to refer to taxes collected specifically to support the police. From the way in which they are mentioned, we can conclude that these police taxes were collected by land-owners from their tenants and then either used to pay local police or handed over to the lord. Several of the Vanjeri records are the accounts of how the yogam determined the salary for the resident police and collected a tax specifically to pay that salary.96 Other taxes and exactions such as talaviri (a kind of poll-tax), kat.am (generic tax on land), and mukanokku kizhi (a presentation of valuables in a small cloth to a brahmin?) were also remitted to the yogam council and the Vet.t.am Raja. Portions of all these exactions were divided among the resident police officers by the sanketam or passed on to the overlord’s men. In this way, both the resident police and policing agents close to the overlord received their incomes from the taxes, duties, and tolls received by the sanketam and/or the raja. Once again a general dharmasastra idea has been implemented as the law of the land in medieval Kerala, albeit in much more specific and definite manner. On the one hand, dharmasastra prescribes that a king’s primary duty is to protect his people. To afford this protection, the king must collect taxes and establish a police force both locally and supralocally with the income. On the other hand, records from Trikkandiyur document the collection of taxes specifically for the purpose of supporting a police force at both the local and supralocal levels. In addition, the Vet.t.am lord commissioned the Kovil Nambi for the task of punishments and other judicial affairs, indicating his responsibility for the protection of the people in his realm. The parallels

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between the two systems at an ideological, and to some extent practical, level suggest an intimate connection of dharmasastra and local law. As with other examples, a causal relationship behind the parallels cannot be proven definitively, but given the brahminical power structure in Trikkandiyur and brahmins’ role as the promulgators of dharma texts, we can infer that dharmasastra ideas about police were received, continued, or appropriated as the fundaments of the police system in this part of medieval Kerala. In addition to control of the penal and police systems in Trikkandiyur, the Vet.t.am lord, and sometimes the Zamorin of Calicut, also dealt personally with the yogam council of this region. The council was comprised of four members called janam and an executive called the samudayam, who was usually the head of the Vanjeri family. A record of 1602 A.D. gives an account of the fine paid and expiation performed by the Vet.t.am lord for unspecified offenses (pizhakal.) committed by himself and his relatives.97 Another record of 1605 A.D. shows that the Kovil Nambi had the power to call meetings of the yogam council and that the Zamorin also attended such meetings, though with what frequency we do not know.98 It appears, however, that the Kovil Nambi had considerable influence over the decisions of the yogam council. He was more than just the punitive power in the region; he also had some judicial authority. The relationship of the Kovil Nambi and yogam council not coincidentally bears a strong resemblance to the relationship of the Koyil Adhikarikal. and sabha council of the earlier Cera period. According to M.G.S. Narayanan (1987: xvii), “The agent of the Perumal known as the Koyiladhikarikal or Alkoyil also used to attend the meeting of the Sabha. He has been replaced by the agent of the Naduvazhi called Kovil Nambi in the present case. Subject to confirmation through further research in the period after the Cera Kingdom, it may be assumed that the Yogam referred to in these documents was the continuation of the Sabha”.99 It appears that many of the basic arrangements between overlords and brahmin communities remained stable despite the shifting political tides in the wake of the Cera kingdom’s disintegration. In contrast, Varier and Gurukkal have suggested that the post-Cera period was marked by a decentralization of political power into the hands of local chieftains (desavazhikal.) who now controlled certain revenues such as the annual at.t.aikol. tax which used to be remitted to the Perumal. This decentralization allegedly caused “the urs and sabhas to become less important and to shrink into customary, localized practices”.100

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Thus, according to their theory, increasing regional political power occurred at the expense of the brahmin communities’ authority. However, the Vanjeri records clearly show that the political ruler of the Trikkandiyur region, the Vet.t.am lord, had only a limited, though well-defined role in the brahmin communities under his sway. His dealings with the yogam council do not appear to be any more or less than that of the Perumal with the sabhas of the early medieval period. Varier and Gurukkal have, I think, made too much of the decentralization of political power in the post-Cera period. First, a major decentralization of power cannot occur if no strong centralized power exists. The Cera kingdom was not a strong, absolute monarchy by any means, but rather a confederation of lords and powerful brahmin communities under the mantle of the Perumal.101 Second, the interactions and boundaries between lord and brahmin communities were fundamentally continuous throughout the medieval period in Kerala, despite the modest political gains of regional lords when the Perumal’s mantle of authority was lifted. Third, from the perspective of the brahmin communities, their tenants and servants, there appears to be little immediate change from the Cera to post-Cera period. Similar taxes were collected, similar policing systems were in place, similar tenancy arrangements governed the relations of production, and, most importantly, brahmins still maintained a considerable political and economic authority in the areas under their control. Therefore, the portrayal of the post-Cera period as a time of major political decentralization attributes a false centrality to the Cera period itself which shows more continuities than disjunctions with the subsequent period. The relations of lord and brahmin council constitute a major topic of dharmasastra literature. In fact, the relationship can justly be considered the foundation of legal procedure as described by dharma texts. The relations between the Vet.t.am lord and the yogam council of the Trikkandiyur sanketam bear strong resemblance to the relations prescribed in dharma literature. To summarize, the overall legal system of the Trikkandiyur sanketam was characterized by a well-defined relationship between the yogam council of brahmins, who were the primary custodians and promulgators of legal order, and its overlords, especially the Vet.t.am lord, on whom the sanketam leaders relied for their own judicial authority and for the enforcement of the law. The law being enforced in this case was called the desamaryada, a set of legal rules and practices known to the entire community and determined by its brahmin leaders. I have shown above that this local law was deeply influenced by norms and ideas of dharmasastra. The final section

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explores further how the desamaryada was perceived and presented in the Vanjeri records. This presentation is then compared to dharmasastra ideas about the functioning of law in practice, with particular reference to the role of ‘custom’.   DESAMARY ADA: LAW AND CUSTOM IN THE TRIKKANDIYUR REGION

In the previous sections, I described the cycle involved in the preservation and transmission of dharma texts and examined how this cycle operated in the legal system of one part of medieval Kerala. In this section, I suggest that the desamaryada of the Trikkandiyur region, as seen through the examples already discussed, represents the last phase of this cycle, namely the appropriation of dharmasastra ideas and rules into a local or regional legal system. It is in this phase of the cycle that we can see how dharmasastra rules and legal ideas were, in a manner very different from a Western legal code, implemented as the law of the land. References to the desamaryada from the Vanjeri records show that it was simply held to be the law of locality, without any reference to any other system or source of law. There are no references to specific dharma texts or any other set of written legal rules. We should not expect any because the influence of dharmasastra occurred primarily through the medium of brahmins, who determined the law based on their interpretations, not invocations of dharmasastra. The influence of dharmasastra, as shown above, becomes apparent only through a study of the contents of the records and not through direct reference to any particular text. Scholars have emphasized the role of “custom” in the medieval law of Malabar at least since the beginning of the British Raj in Kerala. William Logan and others who have investigated legal history in Malabar constantly refer to “custom” as the primary source of law.102 Logan states, “If it were necessary to sum up in one word the law of the country [Malabar] as it stood before the Muhammadan invasion (1766 A.D.) and British occupation (1792 A.D.), that word would undoubtedly be the word ‘Custom’ ”.103 Frequent references to maryada and acara, coupled with the fundamental misunderstanding of dharmasastra traditions by the British, no doubt led Logan to this conclusion. There was also, by Logan’s time, a movement among the British to reject dharmasastra as a primary source of Hindu law in favor of organized efforts to collect and codify local customs in various parts of India.104 In fact, anthropological studies of law in other former British colonies have shown that “customary law” was a conceptual tool

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by which British authorities codified “convenient” pieces of indigenous law in order to mold alien legal practices and procedures into familiar form.105 In Kerala, Logan’s efforts to understand and codify customs, his insight and foresight notwithstanding, were certainly a product of this movement which disparaged dharma texts and romanticized customary practices as the immemorial legal vestiges of an eternalized Indian society. However, a terminological overlap between Sanskrit and Malayalam has led scholars like Logan astray in regard to the role of custom (called maryada or acara) as a source of law in medieval Kerala. In the Vanjeri records, maryada and acara do not mean ‘custom’, as they often do in Sanskrit, but law. In this overlap, Logan missed an important point, namely that many of the so-called customs of Malabar were part and parcel of the dharmasastra tradition, and that, therefore, the “customs” of Malabar were, by and large, actually appropriated practices from more widespread legal traditions, whether these were dharmasastra traditions or regional, especially South Indian, legal practices. References to maryada or acara must be understood in this context in order fully to grasp the influence of dharmasastra norms in the local legal traditions of medieval Kerala. At least in the context of medieval Kerala, words that have traditionally been translated as ‘custom’ by scholars would be better translated as ‘law’ itself, a gloss which would more accurately account for the differing sources of legal practice, that is not merely from local custom strictly defined but also from a broader legal traditions within Kerala and from other parts of India. Terms such as “desamaryada, desacaram, or maracati”, all usually translated by the word “custom”, appear in eleven of the Vanjeri records. This is a deceptively small percentage of the total 162 records. In some cases, parts of stock phrases are left out and must be inferred from the context of the record. For example, in three records involving the establishment of a kuzhikan. am, a kind of supplement to a usufructuary mortgage deed, the phrase “desamaracatiyayi”, or “according to local law”, appears, indicating that the language and provisions of the mortgage conform to the law prevailing in that area. In a record of 1581 A.D., the full stock phrase reads, “Moreover, a kuzhikan. am which is in accordance with local law (desamaracatiyayi) is also given for any produce from the improvements made in the parambu”.106 Five other records also use the same legal wording, while omitting the phrase “according to local law”.107 We must assume that the other mortgages were also made “in accordance with local law” based on the fact that, excepting this one phrase, the wording is nearly identical. The omission

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of reference to the desamaryada in such stock phrases was perhaps an avoidance of redundancy. It is tantamount to avoiding phrases such as “we make this legal contract in accordance with the law”. The repetition is unnecessary because all legal contracts, mortgages, accounts, etc. are assumed to be “in accordance with the law”. However, it should be not . ara109 add ed in passing that both the Smr. ticandrika108 and the Mitaks this phrase among the list of details to be mentioned in the record of a transaction. References to the desamaryada of the Trikkandiyur area are not limited to records of civil contracts. They are found in records of criminal offenses as well. When problems such as murder, theft, violence, or trespass arose, the desamaryada was invoked and a punishment executed on the offender(s). A case of murder clearly demonstrates how people conceived of the desamaryada in late medieval Kerala. In a record of 1607 A.D. about a murdered brahmin,110 the murderer, a military police officer appointed by the Zamorin, was apprehended and detained by “several people [palarum kut.i]” after he fled southward. The head of the Vanjeri family then went to Vammenat.u to apprise the Zamorin of what had happened. He also secured permission from the Zamorin to have the lord of the region111 (koyma) punish, literally ‘to do the law against’, the offender according to the law of the Trikkandiyur area (sanketamarayada) where the murder took place.112 It appears that some kind of trial was held by the yogam, or council of the Trikkandiyur sanketam, but the details are not given. The text simply says that the members of the yogam council “considered [niru picca]” the matter and eventually decided on capital punishment for the murderer. In this case, the fact that a question of jurisdiction arises, namely who should punish the offender, indicates the propriety of the sanketam law. The people who discovered the body (or possibly even witnessed the murder) raised a “hue and cry [nilavil.icca]”113 which led to other people, probably Nayar police, apprehending the fleeing murderer. Finally, the yogam council investigated the case and had the murderer executed. These facts substantiate the idea that the desamaryada was the law in the Trikkandiyur area. It had jurisdictional boundaries; it was well-established among the people; and its provisions were precisely and efficiently carried out by the “properly constituted authorities” – characteristics which give the desamaryada the status of ‘positive law’.114 Though these references do not tell us anything about the sources of the desamaryada, i.e. the bases on which the “properly constituted authorities” determined the law, they do tell us the desamaryada pos-

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itively determined the form for certain civil transactions, that it was respected by the political rulers of the region, and that it was positively applied to its transgressors in the form of punishment. The force of the desamaryada in Trikkandiyur has been characterized as that of an “unwritten constitution”.115 This phrase indicates that the law of the sanketam was somehow “constituted”, but it does not suggest how. The desamaryada as such was not written down, but many of its rules are to be found in a general form in dharmasastra texts116 which formed an integral part of the strong brahminical traditions of medieval Kerala. However, the lack of a written law does not impugn the stability of the law in medieval Kerala.117 Even in very literate modern societies, laws are not often learned by reading legal codes or court proceedings, but by general processes of acculturation. The same was true of medieval Kerala, a society in which very few people could read.118 For the idea of dharma to be effective, it must remain flexible in the sense that it is continually, though slowly, recreated and reinterpreted by the elites in Indian society.119 Nevertheless, the local law of the Trikkandiyur sanketam appears to have been well-known to groups of brahmins, Nayars, and lower castes alike. Such an approach to law is eminently practical in the rural communities of late medieval Kerala in which the dealings of most people never strayed beyond the boundaries of their local communities, their desam . s. The law was flexible and concentrated on the maintenance of social harmony rather than strict adherence to a fixed legal code. However, the flexibility of dharmasastra is based not on a law that is constantly changing, but a law that can adapt to conflicts and disputes with social goals, and not merely legal goals, in view.120 Being based in part on dharmasastra ideas and in part on custom, the legal practices of Trikkandiyur were, in fact, a stable source of law as shown by the fact that these rules retained their currency for at least the three hundred years documented by the Vanjeri records. The stability of this unwritten local law called the desamaryada was the brahmin community that controlled this area politically and ideologically. It is undoubtedly due to their influence that dharmasastra injunctions came to play such an important role in the fundamental organization and understanding of law in the Trikkandiyur sanketam, not to mention some specific legal practices that appear to have been appropriated from the dharmasastra tradition. The brahmin members of the yogam council held the power to determine guilt and innocence, to dictate punishments, to determine the form and procedure for making legal contracts, etc. As the Vanjeri records indicate, they performed

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these legal activities without reference to a fixed, written code of law. Instead, in criminal cases, they would “consider” or “debate” the matter at hand. Then, based on their understanding and, more importantly, their calculated interpretation of the law in the case at hand, they would render a verdict. Since no cases of civil dispute are mentioned in the Vanjeri records, we must look at the civil law from the side of contracts. From this perspective, we have seen that the brahmin leaders of the community appear to have used forms and procedures for their contracts and contract types which originate in dharmasastra traditions, but which have also been adapted to prevailing legal practices through the local interpretation of dharma texts. In general then, the law of the Trikkandiyur sanketam did not emanate from dharma texts themselves but from the ‘social life’ that these texts had in the powerful brahmin community.121 In dharmasastra itself, the concept of sis. t.acara signifies precisely this ‘social life’ of dharma texts. In other words, well-educated, well-mannered, morally upright brahmins, the sis. t.as, were the living incarnations of the principles and practices of dharmasastra. As Derrett (1979: 108) has said, “law thus did not depend on texts, but upon how texts were used”. The power of the brahmins to determine the trajectories of law in the Trikkandiyur region demonstrates that the textualized provisions of dharmasastra which clearly underlie legal practice in this area lived only through the propagation of the managing Vanjeri family and other brahmin households. In Lariviere’s opinion (1997a: 101), “the ancient Indians intuitively held the view that no legal writing was ever intended to be valid in and of itself, but only as it was understood by those members of society who were trustworthy : : : These were the arbiters of custom and, hence, of law”. However, the brahmins of Trikkandiyur controlled the interpretation not only of custom but also of dharma and dharma texts. That is to say, the brahmins sought not merely passive incorporations of local customs but also active implementations of dharmasastra ideas and practices into their local systems of law. Lingat (1973: 202) states that “the rule of dharma did not become a juridical rule until it entered into behaviour and was accepted by the population as a customary rule”, but it was the political, religious, and often economic authority of brahmins that insisted upon the population’s acceptance of such rules of dharma. As the sis. t.as of the Trikkandiyur region, brahmins were the makers and promulgators of law, whether that law was dharmasastra, regional, or truly customary.

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What Derrett (1967: 178–9) has said of all classical Hindu law is also true of the Trikkandiyur area in medieval Kerala: The basic sanctions [of Hindu law] depended upon custom [desamaryada?], and therefore upon agreement. The immobile force of social convention was the ultimate real authority, and even the king’s edicts had to be understood within this framework. There were authorised or conventional scopes within which kings could issue edicts, that is to say, with expectation of their being obeyed. But since custom was always being questioned by those who claimed equality in social terms, and since breaches of custom were the subject of debates, some urging that a breach should be punished with rigour, and some urging that it might be justified – a fundamental, scientific basis for all rules of every kind, whether legal or moral, was in demand, and this  task to satisfy. (brackets added) demand it was the dharmasastra’s

In medieval Kerala, the “social conventions” described here by Derrett were the determinations of law made by brahmins that were generally known as the desamaryada. As we have seen, these conventions themselves were often based wholly or in part on ideas contained in dharmasastra literature. At the same time, as Derrett suggests, dharmasastra continued to provide guidance to the Namputiris who must have been faced with dilemmas of law and of society. Thus, the interplay of dharmasastra and local law continued throughout the medieval period and only came to an end with the removal of native Hindu and Islamic legal specialists from the British courts in the midnineteenth century.

CONCLUSIONS

In the literature on legal history in many parts of the world, the word “custom” is almost always appealed to as the prime source of law in the initial stages of a legal system’s formation. In this older view, “custom” emerged by some mysterious historical process as the law of a particular locality. As Sally Falk Moore (1978: 13) puts it, “Custom used to be treated as the precursor of law, its evolutionary source. Customary laws were not thought of as having been imposed from above, but rather as having emerged from popular practice”. This older view of “custom” as popularly and locally negotiated law fails to encompass all the aspects of law in a particular locality. To suggest, for instance, that customs in medieval India or medieval Europe were so isolated and community-specific as to be different in toto from village to village is misleading. However, the use of the word “custom” by some legal scholars today often suggests this very state of affairs. 122 “Custom” as a meaningful, discriminating variety of law has come to mean what is different from village to village or, at most, region to region. Otherwise,

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it would have to be admitted that custom itself was propagated and followed in a region due to the authority and power of some person or institution in the area in question. While it is certainly true that every geographic community from medieval villages, towns, and manors to our modern subdivisions, residence associations, and neighborhood watch groups has some rules that mark it as a separate legal jurisdiction, most of these “customs” are not that variable from place to place and, more importantly, are overlaid or underlaid with all kinds of other law that is explicitly shared by all the communities in a larger geographic region. To say, for example, that a U.S. neighborhood’s starting a neighborhood watch group to help police their own area is a “custom” practiced in that neighborhood tells only part of the story because just down the road and in towns and cities throughout the U.S.A., there are other neighborhood watch groups that have similar, if not exactly the same, procedures and plans as the first group. Some may have regular patrols; some may meet regularly; and some may simply put a sticker in their window warning possible thieves that there’s a watch group in the neighborhood. But based on the success of early neighborhood watch groups, which may rightly be deemed ‘customs’, a movement somehow began to establish such groups in other areas. Though not every U.S. neighborhood started such a group and though different neighborhoods organized their groups differently, there still exists a fundamental similarity between these different neighborhood watch groups, at least at the level of idea and concept, if not at the level of implementation. The parallels here to the cycle of dharmasastra’s transmission are instructive because they suggest that, much like dialectical variations in language, there was a meta-level of law in medieval India that formed the ‘grammatical’ foundation for the various and varied instantiations of so-called Hindu law throughout India. The contention made by William Logan and others that law in the sanketams, svarupams, desams, nat.us, and other jurisdictions in medieval Kerala was customary does not accurately convey the similarity of legal practices in various parts of Kerala. The differences that did exist were indeed mostly customary, but the much more prominent similarities indicate a common source of law in Kerala that is represented by the dharmasastra tradition. Most scholarly studies of legal history in India have concluded, incorrectly, that law must either be a pan-Indian phenomenon best captured by dharmasastra or that law is purely customary, meaning it is of unknown origin and is restricted to a particular geographic

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region. The point of this essay has been to suggest an alternative to this all-or-nothing model. Namely, I contend that dharmasastra provided the foundation of law, and especially of jurisprudence, in medieval Kerala, and manifested itself through the local laws of Kerala’s sanketams, villages, etc. The intermediaries for the appropriation of dharmasastra into local law were the Namputiri brahmins, who controlled medieval Kerala religiously, politically, and economically. How then should we understand the desamaryada, the ‘customs’ of Trikkandiyur? ‘Custom’ for older legal historians meant unwritten law. Unwritten meant uncodified and therefore variable from place to place. The case of classical Hindu law in medieval Kerala provides ample evidence that this view of ‘custom’ must be changed.123 Desamaryadas, even though unwritten, were a stable source of law in Kerala which influenced and were influenced by legal texts called dharmasastra. The transmission of dharma texts throughout many parts of classical and medieval India gave the legal systems of these various regions similarities which are grounded in brahminical discourses that dominated most areas of India in this period. This similarity only extends to each community’s fundamental outlook on law, dispute settlement, division of juridical labor, etc. The specifics of substantive and adjective law varied widely from place to place according to true custom, tradition, and interpretation. It is in the organization and interpretation of local law that we find the primary relevance of dharmasastra. It might be argued that my comparison of dharmasastra materials and local records from the Trikkandiyur sanketam is illegitimate because I am selectively appropriating only those portions of dharmasastra texts which seem to “match up” with the local records from Vanjeri. But this is precisely the point. Dharmasastra texts are not, and never were, intended to be codes of law in the Western sense, instituted as a whole into a particular polity. They are, as Lariviere has argued, fundamentally records of custom that are complied in an idiom peculiar to Indian sastra texts. The fact that portions of these legal texts, which are in and of themselves not necessarily consistent or complete, show consistent similarities to legal practices as gleaned from other historical documents demonstrates: (1) that dharmasastra literature does indeed contain useful information about law and other aspects of social history in India, (2) that legal traditions and practices represented by and recorded in dharmasastra texts were or became integral parts of the law in places like Trikkandiyur, and (3) that dharmasastra texts, once constituted, spread from their place of authorship and became sources of legal ideas and arrangements in other geographic locations, albeit

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not as codes of black-letter law or legal encyclopedias to be wholly implemented as the law in other areas. There were several different ways to incorporate dharmasastra ideas into local legal practice. These similarities between dharmasastra and legal practices of the Trikkandiyur sanketam do not typically extend to such specifics as the rate of interest on a mortgage, the amount of tax that should be paid for police protection, etc. The influence of dharmasastra happened at a more a subtle level in which general patterns of legal practice or of legal understanding, as in the case of property, found in dharma texts were used in medieval Kerala. In this instance, I am interested in this subtle level because it is not in the specifics, but in the general tradition and system of law that we see the correspondence between dharma texts and the local law of the Trikkandiyur area. If, having read many dharma texts as the brahmin pandits had and considering the local and regional legal practices of other kinds, we ask ourselves the question what would a legal system based on these sources look like, I submit that it would be quite similar to the legal system of Trikkandiyur. Another legal system, equally rooted in dharmasastra, might appear to be quite different from that of Trikkandiyur because the law is not found in texts, but in people, almost always brahmins. Therefore, aspects of dharmasastra appropriated by one legal system may not be accepted by another, and hence, the origin of differences of law in practice that have for so many years been covered up and misunderstood by the word “custom”. Finally, Marc Galanter (1989: 10) has suggested that one of the unifying factors of the linguistically, religiously, ethnically, and economically diverse modern India is the beast called Anglo-Indian law. As a concluding note, I would like to suggest that this “all-India legal culture” has roots in the pan-Indian dissemination and appearance of dharmasastra ideas in medieval India. Granted law was not the same everywhere (is it now in India?), but general ideas about law and about dharma crossed political and linguistic boundaries in medieval India in ways that signal the authority and reverence of dharmasastra as a vital source of law.

ACKNOWLEDGEMENTS

The research for this essay was funded by a fellowship from the National Security Education Program. The author is grateful for the support of this program.

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This paper has benefitted greatly from the comments of M.G.S. Narayanan, Richard Lariviere, and Kesavan Veluthat, as well as the members of the Classical Indian Studies Colloquium at the University of Texas at Austin.

NOTES 1

For examples from Bihar, see Lariviere (1984) and Banerji-Sastri (1942). The distinction between jayapattras, verdicts of a tribunal, and vyavasth as, pronouncements of a lord or a tribunal, appears to be a matter of degree. On vyavasthas in South India, see Nilakantha Sastri (1955: 474–6); Mahalingam (1955: 220–22); Veluthat (1985); and Derrett (1971). For epigraphic examples of vyavasthas, also called kaccams, in medieval Kerala, see Narayanan (1972: 113–6). 2 On legal ideas in Buddhist traditions, see the work of Gregory Schopen (1994a, 1994b, 1995). Schopen’s work suggests, among other things, that the division of India into Hindu and Buddhist has been overemphasized by most scholars. Legal ideas, for example, appear to have been borrowed and extended, and thus, the scholarly division of classical Indian society on what might be called theological grounds seems to be false, when seen from other perspectives such as law. 3 Examples include Lingat (1973); Chanchal A. Bhattacharya (1990); Sharan (1978); Das (1977); Glucklich (1988). While each of these works contain good discussions of dharmasastra literature, the presentation of such discussions as the ‘law’ of classical India indicates a lack of historical reflection on the problems involved in studies of undated, idiosyncratic dharma texts. For this reason, the conclusions drawn in such work are generally ahistorical, and therefore, often unhistorical. 4 In addition to the records from Kerala studied here, I refer the reader to a collection of similar records from Gujarat entitled Lekhapaddhati (1925). 5 The archival records of the Vanjeri family’s transactions have been published as Vanjeri Grandhavari (1987). 6 On the increasing domination of overseas trade by Malabar Muslims, see also Bouchon (1973). 7 At an ideological level, Hindu traditions in general are characterized by a strong isolationist xenology. In his excellent essay on the traditional xenology of Hinduism, Wilhelm Halbfass (1988: 187) writes, “The Indocentrism developed in ‘orthodox’ Hindu thought transcends by far what is ordinarily called ‘ethnocentrism’. It is not simply an unquestioned perspective or bias, but a sophisticated theoretical structure of self-universalization and self-isolation.” 8 Compare James Heitzman (1997: 182–3). Heitzman selects the Tiruvidaimarudur region as a case study on “lordship” in the Chola state because “it was a not insignificant place, but it was not especially interesting either. It is the rather ordinary characterization of Tiruvidaimarudur that makes it so valuable for historical purposes, because the transactions that took place here were not exceptional or spectacular, but typical : : : .” The same is true of the Trikkandiyur sanketam in the late medieval period. 9 In this essay, I have given the conventional modern spelling, whether Sanskrit or Malayalam, for most words. However, the spelling of all words quoted from the Vanjeri Grandhavari is as it appears in the text. Thus, variant spellings for the same word may appear. 10 According to Varier and Gurukkal (1992: 251), the administration of law and the meting out of punishment in the post-Cera period, denoted by terms like desamaryada, was influenced by newly formed regional political powers (nat.uvazhis). Therefore,

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it is incorrect to say that desamaryada refers to a law limited to a particular area. The point is that though Kerala experienced a political decentralization beginning in the 12th century, most legal practices continued without serious disruption of the established systems of law. See also, M.G.S. Narayanan (1972: 67). 11 See Ludo Rocher (1993); Rosane Rocher (1993). 12 The term “smr.ti” refers to dharmasastra texts written in verse and generally considered to be authoritative sources of dharma. 13 Though Lariviere is not the first to suggest that smr.ti texts are based on customary practices, he has considerably clarified the issue of the nature and origins of smr.ti. Furthermore, I believe Lariviere’s comments regarding the composition and redaction of smr.ti texts apply to most, if not all, sastra texts. Despite the prescriptive idiom of sastra, its longevity, inconsistencies, and appeal can only be explained if the texts described, in large part, what some people actually did, whether in architecture, law, government, medicine, etc. 14   n~avalkyasmr. ti, See Manusmr. ti, 2.6 (1983); Naradasmr . ti, 1.10–11 (1989); and Yaj 1.7 (1985). 15 See Wilhelm Halbfass (1991: Chps. 1 & 2). 16 The relationship of dharmasastra and mımam . sa is explored in detail in P.V. Kane (1975). 17 _ Published as Sankarasmr . tih. (1906). According to the editor and Ulloor (1955: Vol. 2, 41–2). only the first twelve chapters of thirty-six have survived. 18  Sankarasmr. ti, 1–4 (1906: 1). 19 This is the date assigned to the text by Ulloor (1955: 41). Therein, he states, “I _ have already demonstrated in Chapter Eight that the text called Sankarasmr . tih. or  Sa  nkar _ acarya]. Laghudharmaprakasika cannot be the work of Bhagavat-padar [Adi nkara-p _ ujyapadan who was the guru of PrathamaThere was a man called Sa ankarasmr _ paramesvaran. He is probably the author of S . tih. , but nothing definite can be said.” Therefore, the dating of this text is uncertain. In my opinion, the written redaction of this text makes more sense as a product of the seventeenth or eighteenth century because this was the period in which several other texts, such as Keral. otpatti, designed to legitimize the traditions of Namputiri brahmins took written forms. It is likely, however, that many parts of the written version apply to earlier, perhaps much earlier, historical periods. 20 M.G.S. Narayanan suggested to me the possibility that one of the acaryas from the  Sa  nkara,  nkara, _ _ who are also called Sa four mat.hams legendarily established by Adi_ tih . While this theory would account for the popular name of complied the Sankarasmr . . the text, it does not fully account for the popular belief that the text was authored by  Sa  nkara. _ AdiIt is impossible to state definitively which theory is correct. However, _  it is the when the eponym Sankarasmr . ti is applied to the Laghudharmaprakasika,  Sankara  that are invoked. This is my reason for authority and antiquity of Adi nkara _ was added to the text after it was emphasizing the theory that the name Sa compiled in order to legitimize its place in Kerala. 21   a (1925). Ulloor discusses the date of this text and its commentary Vyavaharam al  in his massive Keral. asahityacaritram . . Four manuscripts were used for the printed edition, but more than fifty are known to exist. According to Ulloor (1955: Vol. _ Narayan. an Namputiri, who 2, 331) several “old books” refer to Mazhamangalam   a.  Moreover, Ulloor al lived in the sixteenth century, as the author of the Vyavaharam  scitta-vimarsini (another work of Mazhamangalam), _ states, “after reading the Praya I am inclined to agree that Narayan. an Namputiri is the author”. Ulloor’s dating based on an alleged author’s composition and a comparison of an original work with a very unoriginal collection of verses is obviously suspicious. However, the   a demonstrate its reliance al fact that the organization and style of the Vyavaharam  on the Vyavaharanirn . aya (1942), a date in the sixteenth century remains possible,

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but unconfirmed. As for the Malayalam commentary, one of the manuscripts states that it was composed in “84” in order to make the Sanskrit texts accessible to others   a,  p. ii.). According to Ulloor (1995: Vol. 3, al (see the Introduction of Vyavaharam 684), there is good reason to believe that “84” refers to the Kollam era 984, or 1809 A.D.   a and refers to it conal Hermann Gundert was fascinated with the Vyavaharam stantly in his dictionary. Gundert collected a version of the text, preserved in the Universitatsbibliothek in Tubingen, which runs to 628 pages. Scaria Zacharia, the principal editor of the Gundert collection, has suggested that the text may very well  be different from Ulloor’s edition. See his Keral. otpattiyum . Mattum . (1992: 31–3, 65). However, having examined Gundert’s manuscript, Ulloor’s printed edition, and   a,  I have found no variations other al several palm-leaf manuscripts of Vyavaharam than minor deletions or insignificant vocabulary differences. This lack of variation seems to suggest a relatively recent date for this text. Ultimately, I have not yet been   a was compiled at the behest of al able to exclude the possibility that Vyavaharam Col. John Munro who was charged with reforming Kerala’s legal system in 1809. 22   a is a very basic text on legal procedure. The comIn itself, the Vyavaharam al mentary provides no keen jurisprudential insights or mımam . sa-style interpretations to the source-text, such as we find in the commentaries of Medhatithi, Vijn~anesvara, Vacaspati Misra, etc. Occasionally, Kerala-specific words such as “taravat.u, otti, and  cat..tam . ” appear in the Malayalam section, but by and large the commentator confines himself to a simple glossing of the Sanskrit text, often using the same word, in its Malayalam form, in the commentary as was used in the source-text. Thus, the commentary is basically a Malayalam translation of the Sanskrit, with occasional examples and explanations. In a sense, it is a beginner’s text on vyavahara intended to summarize, not replace, the classic writings on legal procedure. 23   a came in the early 19th The direct historical significance of the Vyavaharam al century when Col. John Munro, the Resident and Dewan of Travancore, used this text to create a composite Anglo-Indian code of law for the Travancore kingdom. The  established a hierarchy of courts and the rules new law, entitled the Cat..tavariyola, for presenting cases in those courts. For a brief account, see P. Shungoonny Menon (1878: 271, 275–280). Both Ulloor S. Paramesvara Aiyar (1931) and I. Matthew (1931) have written informative papers and collected relevant primary materials about Munro’s reforms. 24   a.  See K.V. Rangaswami Aiyangar’s comments (1942: xxv) on the Vyavaharam al 25   a,  2 (1925: 1). Vyavaharam al 26 See Rajan Gurukkal (1993–4: 28–31). Gurukkal gives an excellent account of how the brahminical ‘discourse’ came to dominate South India: The tacitly recognized ritual supremacy, resource potential, social control, political influence, and cultural skills provided the brahman. as with the best conditions of domination. They symbolized the authority of collective norms and took precedence over the ruling powers. Their hegemony over the communication channels and ideological structures of legitimation had made them the determinant force of political authority by the sixth century. On top of it all, their status as custodians of higher wisdom about the universe, practical knowledge about the cycles of seasons and their calendrical measurement enabling prediction of natural changes had added to the ritual charisma of the brahman. as. It was this enormous potential of social control coupled with the growing control of means of production which, subsuming all differential categories and groups in due course, encompassed the total society. (31) On the importance and pervasiveness of brahmins as disseminators and propagators of Sanskritic traditions throughout India, with examples from Orissa, see Heinrich von Stietencron (1985: 27).

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See Narayanan (1972: 82) and Dale (1980: 20). The task of correlating the detailed information of the dharmasastra tradition with reliably dated historical information has barely begun. Nevertheless, scholars of law, religion, and philosophy agree that dharma texts represent the law of the land in the manner described in this essay. See Richard Lariviere (1997a: 109); Patrick Olivelle (1995); Wilhelm Halbfass (1988: 333); and Albrecht Wezler (1985: 8). 29 The distinction between private and public is absent in the Vanjeri records. While on the surface the records appear to be between private individuals, the party representing Vanjeri transacts on behalf of the sanketam and the temple. Therefore, his dealings must at the same time be considered public because the council of the sanketam is the major legal force in the area. A private idiom masks the function of the temple and its leader, the Vanjeri Illam, as the major landholders of this small region who bore the burdens of social, economic, and legal order. 30 The word veppola is a compound of veppu and ola, literally a “record of pledge”. The more common term in late medieval Kerala for this type of mortgage is otti.  See Logan (1887: ccx-ccxi) and Gundert (1872: 179, 977). 31 Two undated records (see Vanjeri Grandhavari (1987: 60–1 [Docs. No.–7B and No.–11B]) indicate that the produce of the land was intended to be equivalent to a certain amount of interest, specified monetarily. Though most veppola documents do not include this phrase stating the equivalency, it should be understood that a veppola type mortgage is a usufruct in which the produce of the specified lands is given in lieu of monetary interest on the loan. 32 Names of Namputiri brahmins are listed as father’s name, then personal name. Additionally, the illam, or household name, and the village or community is usually given. In Malayalam, the full name would then be listed as follows: (1) village or brahmin community, (2) illam name, (3) father’s name, and (4) personal name. 33 In the Vanjeri records, the amounts of mortgages vary from as little as two ‘new coins’ to over a thousand, depending upon the extent of the land mortgaged. The term ‘accu’, or mould, although a coin type itself, certainly refers here to a standard mould by which ‘new coins’ were minted. 34 ‘Koyaparambu’ would signify a parambu, garden land, owned or inhabited by a Koya, a Muslim trader. While it is possible that such a place existed, it is more likely that this is one of many scribal errors in the Vanjeri records as references to Muslims are quite rare. One possibility is that ‘koya’ is in fact ‘koyilparambu’, or temple lands. 35 The word here is “kari” which, like its cognate in English “curry”, usually refers to cooked vegetable or meat dishes. In old Malayalam and Tamil, the word referred to black pepper, an important product of Kerala. Given the context and the date of the record, pepper seems to be a more reasonable interpretation for “kari” in this case. See Tamil Lexicon (1982: Vol. 2. Pt. 1, 825). 36 Kat.am . (kat.amai in Tamil) is a generic name for obligations, duties, or taxes. In medieval Tamil and Malayalam inscriptions, the term most often referred to various “land taxes in kind” payable to the overlords of a region. See the discussions in M.G.S. Narayanan (1972: 135) and James Heitzmann (1997: 165–6). 37 ‘Parambu’ denotes elevated lands above the paddy fields on which crops of various kinds can be cultivated. 38 The word for ‘share’ here is ‘kur’ which has a number of meanings, two of which seem possible here. The first is simply ‘part, share, portion’, i.e. a piece of a whole. In this case, ‘kur could mean the higher and lower parts, or parambu and paddy lands respectively, of the mortgaged land. In the second possibility, ‘kur’ means ‘right’ as in rightful portion. In this sense, ‘kur’ is common in royal families to distinguish the king’s share (muttukur’) from the king’s younger brothers’ shares (ilayakur). However, this meaning of ‘kur’ is normally associated only with royalty and not 28

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with Namputiris. The precise denotation of ‘kur’ in this case remains, therefore, indeterminate for the present. 39 Specifically, a kuzhikan. am is a document given by the mortgagor to the mortgagee promising to compensate the mortgagee for any investments made on the mortgaged property, the fruits of which have not been realized at the time of the mortgage’s redemption. 40 Vanjeri Grandhavari (1987: 15 [Doc. No.–27A]). 41 See Chatterjee Sastri (1971: 230–35); Sternbach (1965: Vol. 1, 117–19); Sen (1984: 192); and Kane (1975: Vol. 3, 430). 42  Vyavaharanirn . gr.hıtva vr.ddhyartham . bhogayogyam . . aya (1942: 242): “dravyam dadati cet jam . gamam . sthavaram . vapi bhogyadhis sa tu kathyate ”; same as   a,  426 (1925: 118). al Vyavaharam 43  Naradasmr ti, . 1.109 (1989). Lariviere, paraphrasing Asahaya, states, “if a creditor has a pledge which he is supposed to use, grain, dwelling, etc., but he does not use it, then he loses the profit in that case as well, because the usufruct was to be his profit.” See also Smr. ticandrika (1988: Vol. 2, 325). 44 The precise technical term for the veppu type of mortgage in dharmasastra is apratyaya-bhogya dhi. This is a sub-variety of usufructuary mortgage in which the use of the mortgaged property applies only to the repayment of the interest associated with the loan – the principal is not reduced through the use of the mortgaged property. For a discussion of both the apratyaya- and sapratyaya- varieties of usufructuary  mortgage, see Vyavaharanirn . aya (1942: 241–3) and Chatterjee Sastri (1971: 220). 45 The words ‘otti’ and ‘adhi’ are synonymous in Malayalam and Tamil. For example,   tiyur (Tiru-otti-ur) is described in Sanskrit as Adhipura in an a temple called Tiruvot   South Indian Inscriptions, Vol. II, Part II, inscription of the 9th century AD. See No. 103, pp. 235–6. 46   a,  404, 406 (1925: 112–13). Vyavaharam al 47 An exhaustive account of discussions of interest in dharmasastra is found in  Chatterjee Sastri (1971: 21–75). See also Vyavaharanirn . aya (1942: 224–5) and the general description in Ludwik Sternbach (1965: Vol. 1, 119). 48 A few examples in which lands are unspecified are found at Vanjeri Grandhavari (1987: 40, 48–9 [Docs. No.–74A, –75A, –93A, –94A, –95A, and –97A]). 49 Vanjeri Grandhavari (1987: 43 [Doc. No–81A]). 50 The term pan. ayam . is also distinguished as a specific type of mortgage in documents from other parts of medieval Kerala. In later Malayalam, this word comes to be a generic term for any security given for a loan. See the discussion below on the distinction of pan. ayam . and veppu as specific types of mortgage. 51   a,  427 (1925: 118): “dravyattine van_ niccum _ Vyavaharam al kon. t.u palisaykku ~n ~u su ks. ippan sammaticcu pan. ayaccıt..tum . ezhutikot.uttu perumararutu ennum paran   a and Vyavaharanirn  al kot.uttal a pan. ayattinu gopyadhi ennu per.” Both Vyavaharam . aya (1942: 233) cite Harıta’s definition of bhogyadhi: “gopyadhis tu parebhyah. svam . datva yo gopyate gr.he.” 52 Vanjeri Grandhavari (1987: 17, 34 [Doc. No.–31A, –63A]). 53 Unfortunately, there is yet another unresolved issue in regard to these pan. ayam . documents. The phrase “kot.ukkavum kol.l.avum . kat.avar” is used to express the legal obligations of the transacting parties. The unresolved issue, from a legal perspective, is whether or not this phrase means that possession of the mortgaged property is transferred from the debtor to the creditor. The phrase literally means “[the parties] are people who assume the obligation to give and receive [the mortgaged property].” There is no indication of whether the obligation is only potential, in the case of default on the debt, or whether the obligation is immediately incumbent on both

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parties. The lack of a finite verb here precludes a final conclusion until more explicit records including this phrase can be systematically analyzed. In my opinion, the phrase means that possession in a legal sense was in fact transferred to the mortgagee with the proviso that the mortgaged property could not be used or sold unless the debt is defaulted. The best evidence for this opinion are pan. ayam . records which specify the lands which are given as a security. In these records, both the interest and the lands are, grammatically speaking, the direct objects of the verbs “to give” and “to receive”. Therefore, both the interest and the mortgaged property were conveyed to the creditor. How possession was legally accomplished is not specified anywhere. On the basis of the Vanjeri records, we cannot say whether the possession was merely verbal or whether the debtor or creditor physically relinquished or assumed, respectively, possession of the mortgaged lands. 54 The record is found at Koodali Granthavari (1995: 69 [Doc. No. 89C]). Based on a comparison of the stock phrases used in this record with those of the documents called pan. ayattola, it is possible that the agreement made was a pan. ayam . , or custodial, mortgage and that the document was incorrectly labeled as an otti, or usufructuary,  mortgage. Specifically, the phrase “ippan. am . 401–inum . ara neppalisa kan. d. u palisa policcu kot.ukka kat.avan ippan. am . 401–inum . palisakkum . pan. ayam . : : : ” is the same as that found in pan. ayattolas such as Docs. No. 112C and No. 158C. 55 Vanjeri Grandhavari (1987: 9–10 [Docs. No.–18A, No.–20A]). 56 Both terms may be used in their non-technical senses outside of such legal documents, but they are distinguished in these records. In fact, the word pan. ayam .   a as a gloss for the word adhi, meaning pledge (see the is used in the Vyavaharam al   a 435). Both bhogyadhi and gopyadhi are described al commentary on Vyavaharam using the term pan. ayam . as a Malayalam equivalent. This overlapping denotation would mitigate against the distinction I have drawn between otti and pan. ayam  same techni-. were it not for the fact that the word ot ti is clearly used in the    a.  See the discussion al cal sense of usufructuary mortgage in the Vyavaharam above. 57   a,  282–89 (1925: 80–81). Vyavaharam al 58 Smr. ticandrika (1988: Vol. 2, 336): “tatha ca Katyayanah. : ‘maryadacihnitam . ks. etram . vapi yada bhavet gramadayas ca likhyante tada siddhim avapnuyat ’ gramadayas ca ks. etradyadher vyavartakatveneti ses. ah. adisabdena desadayo grahyante ” 59 Vanjeri Grandhavari, [Docs. –8A, –33A, –55A, –86A, –89A, –92A, –96A, –99A, –19C] 60 The word “nalar” in this context refers in a general way to a group of people, or perhaps the community at large. Despite its derivation from nalu, “four”, plus the personal suffix -ar, the phrase does not mean “four people”. 61 Vanjeri Grandhavari (1987: 47 [Doc. No. 91A]). 62   Apastambadharmasutra (1992: 2.4.9.8–9): “sarvany udakapu rvan. i danany yathasruti  (1986: 1.5.16–7): “svastivacya bhiks. adanam appurvam vihare ”; Gautamadharmasustra .  dadatis. u caiva dharmyes. u ” ; also cited in Vyavaharanirn . aya (1942: 291). 63  . ara on Yaj  n~avalkyasmr. ti 1.201 (1985): “pu rvokte See, for example, the Mitaks patre gavadikam arcitam . sastroktodakadanadıtikartavytasahitam . deyam . .” 64   a,  584 (1925: 167); same as Vyavaharanirn  Vyavaharam al . aya (1942: 290). 65 See the discussion in Kane (1975: Vol. 3, 497). 66  . ara,  intro. to Yaj  n~avalkyasmr. ti, 2.114 (1985): Mitaks

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yad api svagrama-jn~ati-samanta-dayadanumatena ca hiran. yodakena s. adbhir gacchati modinı iti tatrapi gramanumatih. ‘pratigraphah. ‘prakasah. syat sthavarasya vises. atah. ’ iti smaran. at vyavahara-prakasanartham eva apeks. yate na punar gramanumatya vina vyavaharasiddhih. samantanumatis tu sımaviprattipattinirasaya jn~atidayadanumates

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tu prayojanam uktam eva ‘hiran. yodakadanena’ iti ‘sthavare vikrayo nasti kuryad adhim anujn ~aya’ iti sthavarasya vikrayapratis. edhat ‘bhu mim . yah. pratigr.hnati yas ca bhumim . prayacchati ubhau tau pun. yakarmanau niyatau svargagaminau ’ iti danaprasam . sadarsanac ca vikraye ‘pi kartavye sahiran. yodakam . dattva danarupen. a sthavara-vikrayam. kuryad iti arthah.

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K.K.N. Kurup (1981: 2). 68 It might be argued that I am illegitimately prioritizing dharmasastra traditions in this case since Vijn~anesvara is only legitimizing a customary practice. In other words, even the dharma text shows that the ritual of pouring water when selling land came first and the dharmasastra rule second. However, the text also says that this ritual came to be associated with land sales because of its resemblance to the earlier rituals of gift-giving as prescribed by dharmasastra. Though the association cannot directly be substantiated, there does appear to be a pattern here in which we can view the cycle of dharmasastra transmission. If Lariviere’s thesis is correct, then even the early rituals regarding gift-giving were customs that came to find a place in early dharmasutra texts. These customs in the form of texts were then taken to other parts of India and established there. However, these customary rituals, now transmitted to new areas, also extended their domain to all alienations of land, including sales. This is what Vijn~anesvara observed and felt obliged to justify because there was no direct justification, no specific smr.ti to justify the practice of pouring water in the context of non-gift alienations. Subsequently, Vijn~anesvara’s legitimation and prescription of this ritual for land sales may have also spread through the dissemination of his famous commentary to other parts of India. This cycle of transmission, while not provable, seems probable. One way or another, this ritual seems to be intimately connected to dharmasastra. 69 See Fuller (1976: 3); Dale (1980: 21); Narayanan and Veluthat (1983: 268), Mencher _ (1966: 14), Logan (1887); and Sankarasmr . ti (1906: 107): “na dadyad agrajam . putram . anyasmai dharanısurah. ” and (1906: 227): “jyes. t.habhrata grhı bhavet.” 70 When comparing the summary chart information found at Vanjeri Grandhavari (1987: 155–7) with the full records (1987: 56–7), the dates and information do not match up. At best, there is a simple confusion of numbers. At worst, there could be wrongly attributed dates and information in some of the records. I have not been able to check this problem with the editor. 71 The question of primogeniture among Namputiri brahmins deserves much closer scrutiny in light of the Vanjeri material. A comprehensive treatment is not possible here since I am concerned primarily with the consent of the younger brothers in transactions of joint family property. 72 For example, Br. haspatismr. ti, cited in Dharmakosa (1938: 1585): “vibhakta vavibhakta va dayadah. sthavare samah. eko hy anısah. sarvatra danadhamanavikraye ” and Br. haspatismr. ti, cited in Dharmakosa (1938: 803): “saudayikam . kramayatam . sauryapraptam ~atisvamy-anujn ~atam . ca yad bhavet strıjn . dattam . siddhim avapnuyat  ”; see also the discussions in Smr. ticandrika (1988: 446–7), Vyavaharanir . naya (1942:   a,  581 (1925: 166). al 288–9), and Vyavaharam 73   a (1925: 295–304). Vyavaharam al 74   a (1925: 300–301): Vyavaharam al

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jyes. .thena jatamatren. a putrı bhavati manavah. pitr.n. am anr. n. as caiva sa tasmat sarvam arhati (1058) piteva palayet putran jyes. t.ho bhrata yavıyasah. putravac capi varteran jyes. t.he bhratari dharmatah. (1060) jyes. .tha eva tu gr.hn.ıyat pitryam dhanam ases. atah. ses. as tam upajıveyur yathaiva pitaram . tatha (1061)

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 See the discussion at Vyavaharanirn . aya (1942: 409–13). Compare Devan. n. abhat.t.a’s remarks on necessary consent at Smr. ticandrika (1988: ~atam eva deyam ~atam 446): “kim . cid bhartrapi bharyanujn . kim . cin mukhyena pi bhratranujn ~atam eva deyam eva deyam . kim . cit svarjitam api dasena svamyanujn . ” [Some things, even for a husband, should be given only with his wife’s consent; some things, even for an elder brother, should be given only with his brothers’ consent; and some things, even if they are personal property, should be given by a slave only with his master’s consent]. In context, these remarks suggest that circumstances should determine whose consent is required for an alienation of property. 77  Katyayanasmr. ti, cited in Dharmakosa (1938: 898). Also quoted in Sarasvatıvilasa  ~aih. (1927: 325) and Vyavaharanirn . aya (1942: 352): “samavetais tu samantair abhijn lyam papabhırubhih. ks. etraramagr. hadınam . dvipadam . ca catus. padam kalpitam . mu ity ahuh. ” 78  n~avalkyasmr. ti, 2.176 (1985): “pratigrahah. prakasah. syat sthavarasya vises. atah. ”; Yaj  also cited in Vyavaharanirn . aya (1942: 292); Smr. ticandrika (1988: 448); and   a,  788 (1925: 168). al Vyavaharam 79 The exceptional record is found at Vanjeri Grandhavari (1987: 49 [Docs. No.–96A]). 80 The Un. ittiris of Pallar, mentioned briefly above, might also be included in this list, but I have chosen here to focus on those political overlords who possessed clear connections with the Trikkandiyur sanketam. A complete political history of the region, however, would have to include the Un. ittiris of Pallar. 81 Kulke’s remarks on ‘Ks. atriyaization’ in Orissa seem appropriate in the Kerala context as well. Would-be rajas donned the symbols of ks. atriyas, formed patronage and political alliances with brahmin temples, and maintained limited military forces. See Kulke (1993: 82–92). 82 Narayanan (1987: xxv): “The Kaval or Raksha (protection) was the joint responsibility of the three lords and the authorities of the Sanketam to which the village belonged. In other words the Sanketam was directly concerned with the maintenance of law and order, though the Nayars entrusted with this duty were appointed by the three kings of the neighboring region.” 83 See Vanjeri Grandhavari (1987: 22 [Doc. No.–22A] and 44 [Doc. No.–83A]). 84 See, respectively, Vanjeri Grandhavari (1987: 23 [Doc. No.–43A], 29 [Doc. No.–54A], and 30 [Doc. No.–56A]). 85 Vanjeri Grandhavari (1987: 29 [Doc. No.–54A]): “kovil nam . pikka droham . kon. d. a nat.appan vasam allayka kon. d. a marajati ceytanna muriyum . kot.uttut.t.u.” 86   a,  716–7 (1925: 206). See, for example, Vyavaharam al 87    Naradasmr ti (M a tr k a ), 1.2 (1989): “dras. t.a ca vyavaharanam . . . raja dan. d. adharah.  n~avalkyasmr. ti, 1.359 (1985): kr.tah. .” For another of many examples of this idea, see Yaj “yo dan. d. yan dan. d. ayed raja samyag vadhyam . s ca ghatayet is. t.am . syat kratubhis tena samaptavaradaks. in. aih. ” 88 Three of numerous examples are Heestermann (1985); P.V. Kane (1975: Vol. III, 1–242); A.S. Altekar (1949: 75–108). 89 See, respectively, Vanjeri Grandhavari (1987: 32 [Doc. No.–61A], 23 [Doc. No. –43A], 29 [Doc. No.–54A], and 41 [Doc. No.–77A]). 90   a,  988 (1925: 266). Vyavaharam al 91  . ara on Yaj  n~avalkyasmr. ti, 2.266 (1985): “yah. cauro ‘yam iti janair vikhyapyate Mitaks  asau grahakai rajapurus. a-sthanapalaprabhr. tir grahitavyah. ”; see also Vyavaharanirn . aya, p. 504. 92   a,  95 (1925: 27); T  n~avalkyasmr. ti, 2.5 (1985): “asedho Vyavaharam al . ippan. ı on Yaj rajadhikaribhir nirodhah. ” and “aseddha asedhakarta rajapurus. ah. .” 93 Kangle (1965: Vol. I, 16): “dhanyas. ad. bhagam . pan. yadasabhagam . hiran. yam . casya 75 76

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jj 6 jj tena bhr.ta rajanah. prajanam. yogaks. emavahah. Manusmr. ti, 8.305–7 (1983): “yad adhıte yad yajate yad dadati yad arcati j tasya s. adbhagabhag raja samyag bhavati raks. an. at jj 305 jj raks. an dharmen. a bhutani raja ~aih. sahasrasatadaks. in. aih. jj 306 jj yo vadhyam . s ca ghatayan j yajate ‘har ahar yajn ‘raks. an balim adatte karam . sulkam . ca parthivah. j pratibhagam . ca dan. d. am . ca sa sadyo narakam . vrajet jj 307 jj”  n~avalkyasmr. ti (1903: 512), verse Cited in Dharmakosa (1938: 586); same as Yaj 1.366: “karadanaprayuktatva c ca prajapalanasya j sarvo hi dhanam. prayacchann atmasamavayi prayojanam uddisati j na ca karadanasya svagupter anyat prayojanam asti j tasmat karam adadanena prajapalanam . vidheyam iti siddham jj”  bhagadheyam. prakalpayam dasuh .

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96 Examples can be found in Vanjeri Grandhavari, [Docs. –1A, –2A, –3A, –17A, –23A, –4C, –7C, –9C, –10C, –12C, and –15C]. 97 Vanjeri Grandhavari (1987: 22 [Doc. No.–41A]). 98 Vanjeri Grandhavari (1987: 27 [Doc. No.–52A]). 99 See also Narayanan (1972: 87). The title of ‘Kovil Nambi’ is almost certainly a continuation of the Cera-period designation ‘Koyil Adhikarikal.’ who was a member of the royal family. 100 Varier and Gurukkal (1992: 245). 101 See Narayanan (1972: 73–89). 102 Modern scholars have also lauded custom as the primary source of law. See Varier and Gurukkal (1992: 245, 251), and Babu Varghese (1993: 259). 103 Logan (1887: Vol. I, 109–10). 104 An excellent account of this movement, with reference to colonial efforts to codify custom in Punjab, can be found in Neeladri Bhattacharya (1996). 105 Joan Vincent (1989: 163–6); Sally Falk Moore (1989: 299–300); and James Read (1972: 167–70). 106 Vanjeri Grandhavari (1987: 15 [Doc. No.–27A]). The Malayalam reads: _ .kka desamaracatiyayi ul..la “immarkkame ipparambil veccun. t.akkinna palan_ nal kuzhikan. am . tarunnun. t.a.” The other two records are Doc, Nos.–32A and –119A. 107 The other five records are Doc. Nos. –28A, –80A, –88A, –98A, and –100A. As an example, the key phrase in Doc. No. –98A of 1650 A.D. reads: “immarkkame _ .ile kuzhikan. avum tarunnun. t.a.” ivattil veccakkunna palan_ nkal 108  Smr. ticandrika (1988: Vol. 2, 133): “adisabdena desacaravaptavaradi grahyate ”  n~avalkyasmr. ti, 2.85). (commenting on Yaj 109  . ara on Yaj  n~avalkyasmr. ti, 2.85 (1985): “adigrahan. ad dravyajatiMitaks sam . khyacarader grahan. am etais ca cihnitam . lekyam . karyam iti gatena sam . bandhah.  . ara read “sam ” However, other manuscripts of the Mitaks . khyavarader” (amount, day of the week, etc.) for “sam. khyacarader” (amount, custom, etc.), a more logical reading given the unusual manner in which “acara” is mentioned here. 110 Vanjeri Grandhavari (1987: 29 [Doc. No.–54A]). 111 It is unclear whether the word “koyma” here refers to the Raja of Vet.t.am or to another local chieftain in the area. Given the fact that the Kovil Nambi, who was an appointee of the Vet.t.am lord, was supposed to execute he punishment of the murderer, it seems likely that “koyma” in this case does indeed refer to the Vet.t.am lord. 112 The way in which the law of the sanketam is referred to here is instructive. _ vammena.tt.inna cenna tamutiriyot.a avastha un. t.akkiyatinte The text reads: “van_ neri  ses. am re koyimmakkon. t.a avane sam . tr.kkan. t.ayu . keta marayata ceyyippikkunna ~ceytu.” The last phrase is the most relevant as it says, “he [the anuvadippu tum .n head of Vanjeri house] also acquired permission to have the Trikkandiyur koyma [lord] carry out the local law against him [the murderer].”

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On the reference to “hue and cry,” see Narayanan (1987: xxvi, f.n. 64). See Lariviere (1997a: 98–9). In reaction to scholars who have denied dharmasastra traditions the status of positive law, Lariviere states, 114

First of all, to say that dharmasastra is not positive law raises the question of what we mean by positive law. If by positive law we mean law enacted by a properly constituted authority for the government of society, then it is my view that the provisions of dharmasastra qualify as positive law. That they are based on normative values or find expression in the exemplary behavior of specific groups does not diminish the positive character of the laws. All legal systems are based on norms and beliefs which, if pressed as to their sources, are ultimately normative and in some sense, therefore, ‘natural’ law. 115

Narayanan (1987: xvii). The ‘textuality’ of dharmasastra is also debatable for much of Indian history. See Ludo Rocher (1993) and Lariviere (1997b). 117 See the indictment of ‘black-letter’ law in Lariviere (1997a: 101). 118 In the early 19th century, Col. John Munro, erstwhile Resident and Dewan of Travancore, stated, “The ryots being almost universally unable to read or write depended upon the accountants for a knowledge or their annual rents : : : ” [qtd. in Ulloor S. Paramesvara Aiyar (1931: 50)]. It is doubtful that literacy was much higher among landed folk, officers, and others. Kathleen Gough’s estimate (1968: 147, 151) that more than half the men and not less than a quarter of the women in early 18th century Kerala may have been literate is probably wrong. 119 The more astute dharmasastra commentators of ancient and medieval India realized that the law must be practical and adjustable to be effective. We have also seen, however, the other side of dharmasastra in which flexibility gives way to rigidification in the attempt to fix social behavior and link legal prescriptions to ‘Vedic’ norms. For a thorough discussion, see Derrett (1967: 195–6). 120 Modern processes of dispute settlement in India continue to have similarities with the legal environment presented in dharmasastra. Anthropological observations of these processes provide some insight into the range of motivations behind legal decisions in classical India. According to Lariviere (1991: 28): 116

Resolution of a dispute to the satisfaction of the group is essential to harmonious existence in village India. Unresolved disputes are the seeds for social fission and disruption. The anthropological literature tells us of the dangers of unresolved disputes. The traditional process of settlement was designed to give vent to all arguments and factions and then to reach a conclusion which was as satisfactory to all parties as possible. Decisions which declared a clear and indisputable ‘winner’ and ‘loser’ were less desirable than those decisions which allowed both parties to retain a fragment of dignity and correctness. See also, Lingat (1973: 253), Derrett (1967: 193) and Cohn (1987: 569–71). See the material in Appadurai (1986). 122 See, for example, the use of the word “custom” in Baker (1990: 1). 123 Recent studies of the relationship between “customary law,” royal law, statute, Roman law, and ecclesiastical law in medieval Europe suggest in similar fashion that “custom” was constantly influenced by other realms of law, even as it formed the substantive basis for some decisions at law. See Berman (1983: 471); Akehurst (1992: xiv); and Gaudemet (1979). 121

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