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TMI Blog1962 (11) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ami Kama- Parama- | alias (2nd Plff) yasami sivam Married | Thanipuli (3rd Plff)(4th Plff) Errammal | chami (died 2.2.1933) | (1st Plff) | | Bangru Ammual | (died 14.12.1930) | | | married also 8 other wise of whom the last to die were: (a) Meenakshi Ammual (died 5.6. 1938) (b) Krishna Ammual (died 10.11.1938) (c) Vellayammal alias Chinathayammal (died 2.5. 1940). Thevaram is an ancient impartible zamindari in Madurai District. Shanumugavalla Konda Bommu Naicker was zamindar from 23.8.1876 to 20.1.1901. On his death on January 21, 1901 Bangaru Ammal, his daughter, got his entire estate under the will executed by him. To discharge the debts incurred by her father Bangaru Ammal executed on March 13, 1913 a mortgage of her properties for a sum of ₹ 2,15,000/- in favour of one Chidambram Chettiar. On his death his son Veerappa Chettiar filed on April 16, 1921, C.S. 31 of 1925 against Bangaru Ammal in the Subordinate judge's Court, Dindigul for the recovery of a sum of ₹ 5,49,6338-7 being the balance of the amount due under the said mortgage. The suit was compromised and on July 28, 1928, a compromise decree was passed therein. Under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the widows filed appeals to the High Court against the said judgments but those appeals were dismissed by the High Court on the ground that they were not maintainable. As Thangachami Naicker interfered with the right of Veerappa Chettiar with regard to certain tanks and water courses in Zamindari he filed 0. S. 2 of 1934 in the Subordinate judge's court of Dindigul against Thanchami Naicker and obtained a decree declaring his right to the said tanks. The appeal filed by Thanchami Naicker against that decree was also dismissed with costs on April 10, 1940. In execu- tion of the decree for costs Veerappa Chettiar got the property alleged to be in possession of Thanchami Naicker attached. One S. Michael (son of Thanchami Naicker) objected to the attachment of the said property on the basis of a sale in his favour by the alleged reversioners to the estate of Bangaru Ammal. That petition was dismissed on August 23, 1944. The said claimant S. Michael filed 0. S. No. 52 of 1944 in the court of the Subordinate judge, Dindigul for setting aside the said claim order. To that suit Veerappa Chettiar and Thangachami Naicker were made party defendants. On January 31, 1945 the alleged rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hevaram Zamindari and that the plaintiffs were not in possession within 12 years of the suit in regard to item 70 of the C Schedule. On those findings he dismissed O.S. No. 14 of 1945 with costs. In O.S. 52 of 1944 he held that the plaintiff therein acquired a valid title as he purchased the land in dispute therein from the plaintiffs in the other suit who are the reversioners to the estate of Bangaru Ammal and that the decree in execution of which the said property was attached was not binding on the estate of said Bangaru Ammal. In that view he decreed the said suit. As against the decree passed in O.S. 52 of 1944, Veerappa Chettiar filed an appeal in the High Court of Madras being A.S. No. 816 of 1947. As against decree in O.S. 14 of 1945 dismissing the plaintiffs' suit they filed an appeal to the High Court being A.S. 83 of 1948. Veerappa Chettiar filed cross- objections therein. Both the appeals were heard together by the High Court. The High Court held that in Bangaru Ammal's marriage the practice of giving Kambu or flour or what is called the taking of Mappetti (millet flour box) before the betrothal was followed and that the marriage expenses were entirely borne by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a general custom in the community to pay the bride's price by way of giving Kambu grain and Kambu flour at the time of the settlement of marriage and that for the bridegroom's party to bear the expenditure for celebrating the marriage and that in the case of Bangaru Ammal's marriage the said Kambu was given and that the expenditure for the marriage was incurred by the Mannarcottai Zamindar presumably in pursuance of the practice existing in the community or in pursuance of an arrangement between the parties. Apart from the fact that no such custom was pleaded, there was no evidence to sustain the said custom. That apart the mere giving of Kambu as a ceremonial relic of the past or the bearing of the expenditure on the marriage wholly or partly by the bridegroom's party could not be a bride's price as contemplated by the Sastras, for the bride's father in those events could not be said to have received any price for the bride. In short the learned counsel attacks both the legal and the factual findings arrived at by the High Court. The gist of the learned counsel for the Mr. Bheemasankaran's contention may be briefly stated thus: According to Dharam Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form of marriage but only with a marriage sanctioned by Hindu Law, for no custom was pleaded in derogation of Hindu Law. But there may be a custom in a community not in derogation of the Hindu Law but in regard to the manner of complying with a condition laid down by Hindu Law. that is to say if the criterion for an Asura marriage was that there should be a sale of the bride, there may be a custom in a community in regard to the manner of paying the consideration' for the sale. It may be mentioned that in this case the learned counsel for the respondents does not rely upon any custom even in the later sense but only on the practice obtaining in the community in support of the evidence that the said practice was followed in Bangaru Ammal's marriage. The main question therefore is what are the ingredients of an Asura form of marriage. As the Manu Samhita has always been treated by sages and commentators from the earliest time as being of a paramount authority, let us look to it for guidance. The following verses from Manu Samhita as translated by Manmatha Nath Dutt Shastri read as follows:-- CHAPTER III, Verse 21: They (different types of marriages) are known as the Brahma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The next question is what is the criterion of an A'sura marriage according to Manu. A contrast between the terminology in the definition of Brahma marriage and that of A'sura marriage brings out clearly his intention. The following words stand out in the definitions. They are 'dana' (giving) 'Kanyapradanam' (the taking of the bride), "Dravina' (wealth), 'dattava' (after having given), 'Saktitah' (as much as he can), 'Svacchandya' (as according to his will). The word 'Apradana' is used in the definition of A'sura marriage in contradistinction to the word 'dana' in Brahmu form of marriage, while a, in the Brahmu form of marriage the father makes a gift of the bride, in the A'sura form the bridegroom takes the bride otherwise than by a gift. In the former the father gives the bride decorated with ornaments, while in the latter the bridegroom takes the bride after giving wealth to the father of the bride and the bride. While in the former the father voluntarily gives the bride in the latter the bridegroom out of his own will pays as much money as he can to the father and takes his bride. The words Saktitah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asked for the bride by the father and) taken (by him), it is the form termed Asura. 'Gautama, 'Chapter IV-Verse 11. The form of marriage in which a bride is purchased for money, is called the A'suram.' Vishnu-Chapter XXIV-Verse 24. If the damsel is sold (to the bridegroom), it is called an Asura marriage. 'Yagngavalkya' : 'The asura by largely giving of money ; the Gandharva by mutual consent; the Rakshasa by forcible taking by waging war and Paisacha by deceiving the girl'- Translation of Srisachandra Vidyaamava : 1918 Edition page 126 : In the Mitakshara the said text is commented upon thus :- .lm15 " The Asura marriage is that in which money is largely given (to the father and others in exchange for the girl). 'Apastamba':"If the suitor pays money (for his bride) and marries her (afterwards) that (marriage is called) the Asura-rite.' 'Kautilya': Arthasastra: Sulkadanat Asura'-the word used is "Sulka" Medhatithi, in his commentary on Verse 54 of Manu Samhita points out that the receipt of money or money's worth for the benefit of the girl (Kanyarthe) does not amount to her sale, and is desirable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99. The definition of Asura by the author does not carry the matter further, for it is consistent with that given in the Hindu law Texts but what is relied upon is his definition of Brahmu marriage as one where charges are incurred solely by the girl's father. From the said definition a converse proposition is sought to be drawn viz : that marriage would be Asura marriage if the charges were incurred mainly by the bridegroom's father. Firstly the definition of Brahmu marriage by the learned Author does not conform with the definition of the said marriage by the lawgivers. Secondly it does not follow from the passage that if the bridegroom's father incurs the expenditure the marriage is an Asura marriage. If that be so, the author would have stated in his definition of Asura marriage that such incurring of the expenditure would make a marriage an Asura marriage. This valuable compilation of the laws and customs of the day does not throw any light on the question now raised before us. Let us now see whether there is any merit in the contention that the concept of sale for a price has by progress of time lost its content and that at the present time a mere form of sale i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second appeal on a question of fact cannot throw any light on the point that has directly arisen before us. Chandavarkar J. in 'Chunilal v. Surajram'((1909) I.L.R. 33 Bom. 433.) accepted the aforesaid definition when he said: 'Where the person who gives a girl in marriage received money consideration for it, the substance of the transaction makes it, according to Hindu Law, not a gift but a sale of the girl. The money received is what is called bride-price; and that is the essential element of the Asura form. The fact that the rites prescribed for the Brahmu form are gone through cannot take it out of that category, if there was pecuniary benefit to the giver of the girl. The Hindu law- givers one and all condemn such benefit and the Shastras, regarding it as an ineradicable sin, prescribe no penance for the sale of a bride." The learned judge also accepted the presumption that every marriage under the Hindu Law is according to the Brahma form but it can be rebutted by evidence. In 'S. Authikesavulu Chetty v. S. Ramanujan Chetty' ((1909) I.L.R. 32 Mad. 512.) at the betrothal ceremony a married woman of the caste to which the parties belonged proceeded fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a bride's price, but that it must be established in each case whether the payment small or large, in cash or kind, is made as a bride's price i. c. as consideration for the bride. In "Ratnathanni v. Somasundara Mudaliar" ((1921) 41 M.L.J. 76.) a sum of ₹ 200/- was paid to the bride's mother for the expenses of the marriage as a term of the contract of the marriage. On that finding Ramesam.' J. concluded that the payment was made for the benefit of the bride's mother as in the absence of the payment, she would have had to find the amount in some other way, by borrowing or pledging her jewels or other properties and therefore the marriage was in Asura form. The learned judge relied upon Steel's observation that the parents should incur the expenditure of the marriage in the Brahma form and presumably drew a contrary inference that if the bridegroom's party met the expenditure it would be an Asura marriage. The learned judge also relied upon that decision in 'Muthu Aiyar v. Chidambara Aiyar'((1893) 3 M.L..J. 261.). Spencer, J. in a separate judgement agreed with him. As we have pointed out we do not see any justification in the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bride's father and placed on the bride's neck at the time of the betrothal ceremony as ' parisam' and the value of the jewel was not even the subject of a bargain but merely left to the pleasure of the bridegroom's father. The learned judge observed that such a gift could in no sense be called bride's price. In 'Sivangalingam Pillai v. K. V. Ambalavana Pillai, (A.I.R. 1938. Mad. 479.) the bride's father gave a large amount and also jewels to the bride and plaintiff's brother-in-law on behalf of the bridegroom gave the bride's father a present of ₹ 1,000/- and a cloth worth ₹ 65/-. It was also agreed that all the expenses of the marriage should be borne by the bridegroom. It was contended that the said presents and the incurring of expenditure on the marriage was a consideration for the bride and therefore the marriage was in an Asura form. The Divisional Bench rejected the contention. Pandrang Row J.- observed at page 481: "It is a well-known fact that, whatever the custom is, the bridegroom and his people also spend a considerable sum of money in respect of the marriage whenever they can afford it. Such expenditure obv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of 1945. There on the occasion of the marriage one sovereign was given along with the other presents to the bride's father as Memmekkanoni. The question was whether the mere adoption of this customary form per se brought the marriage within the category of an Asura or unapproved marriage. The learned judge expressed the view that the payment of memekanom no longer signifies in substance and in truth consideration for the transfer of the girl but has survived as a token ceremonial payment forming part of the marriage ritual. The said judgment was confirmed by a Divisional Bench of the said High Court in 'Vedakummpprath Pillai Muthu appellant v. Kulathinkai Kuppan'. ((1949) 2 M.L.J. 804.) Balakrishna Ayyar, J., speaking for the Bench neatly summarised the law on the subject at page 804 thus : "One essential feature of an Asura marriage, the feature which makes the form objectionable, is that the father of the bride receives a gratuity or fee for giving the girl in marriage. Ordinarily, it would be expected of every decent and respectable father when he selects a husband for his daughter to make his selection uninfluenced by any considerations other than the welfare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... marriage. There is also nothing in the texts to indicate that the bearing of the expenditure wholly or in part by the, bridegroom or his parents is a condition or a criterion of such a marriage, for in such a case the bride's father or others entitled to give her in marriage do not take any consideration for the marriage, or any way benefit thereunder. The fact that the 'bridegroom's party bears the expenditure may be due to varied circumstances. Prestige, vanity, social custom, the poverty or the disinclination of the bride's father or some of them may be the reasons for the incurring of expenditure by bridegroom's father on the marriage but the money so spent is not the price or consideration for the bride. Even in a case where the bride's father though rich is disinclined to spend a large amount on the marriage functions and allows the bridegroom to incur the whole or part of it, it cannot be said that he has received any consideration or price for the bride. Though in such a case if the bridegroom's father had not incurred the said expenditure in whole or in part, the bride's father might have to spend some money, on that account such as indirec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the case of giving of 'parisam' in Kambu. Some of the witnesses also depose to the payment of ₹ 1000/- as 'parisam' at Bangaru Ammal's marriage but that was not accepted by the courts. The evidence destroys the case that 'parisam' was paid at her marriage in Kambu. No witness examined in the two cases says that Kambu is paid at the marriages of the members of the community or was paid at the time of Bangaru Ammal's marriage as a consideration for the marriage but it is said that the witnesses who had been examined in the earlier suit whose evidence has been marked by consent in the present case deposes to that fact. Errammal, the mother of Bangaru Ammal, whose evidence is marked as P. 11 (R) deposes that when Thevaram Zamindar married her the 'parisam' was only ₹ 1,000/- and that when her daughter was married, the 'parisam' was also ₹ 1000/-. In cross-examination she says that according to the custom of the community, it is the practice to bring a mapelli for the nischithartham (betrothal function) and it is customary also to bring cumbu and flour at the time of the marriage and sprinkle it in the marriage hall. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actice in the Rajakambala family to give Kambu as 'parisam' for the bride or kambu was paid as 'parisam' at the time of the betrothal ceremony in connection with Bangaru Ammal's marriage. Reliance is placed upon Nelson's Manual of the Madhura Country published in 1.865. At page 82 of Part II in that /Manual the following passage appears :-- "After this, the price of the bride, which consists usually of 7 kalams of kambu grain, is solemnly carried under a canopy of white cloth towards the house of the bride's father its approach being heralded by music and dancing. The procession is met by the friends of the bride who receive the price, and allege together to the bride's house." Similarly, in Thurston's Castes and Tribes of Southern India published in 1902 in Volume VII under the heading 'Thotti Naickers' at page 192, the following passage is given "The bride price is 7 kalams of Kambu and the couple may cat only this grain and horsegram until the wedding is over." The evidence adduced in this case does not support the said statement. Even if those formalities are observed, they are only the relics of the past. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atus and position in life and particularly when he was celebrating the marriage of his only daughter. Now coming to the documentary evidence in support of the contention that Mannarcottai Zamindar met the entire expenditure, the respondents relied upon P. 22, P. 23, P. 25, P. 26 and P. 28. P. 22 is a letter dated August 8, 1885, written by persons representing the Mannarcottai zamindar to the Thevaram Zamindar office. Therein he stated :"You should soon get ready there all the materials and samans for the shed and 'Panthal' in connection with muhurtham. We will start and come without fail". This letter does not show that Mannarcottai Zamindar gave the money for the materials and samans for the said 'Panthal'. It was only an intimation that everything should be made ready for the marriage as Mannarcottai people would be coming there without fail. Exhibit P. 23 is the account of expenditure incurred on Bangammal's marriage from 1.9.1895 to 5.9.1895. It is said that it represents the amount spent on behalf of Mannarcottai zamindar and the amount recouped from him. The document is not very clear. The account does not appear to represent the entire expendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aicker who is stated to be the Guru of the caste held that 'Kanyadhan' had not been observed in Bangaru Ammal's marriage. The learned counsel for the appellant contests the correctness of the finding and he relies upon some invitations in support of his contention that 'Kanyadhan' was observed in Bangaru Ammal's marriage but the documents are not clear on the, point. The Guru only narrates some of the ceremonies held in marriages in the community but he does not expressly state that the ceremony of 'Kanyadhan' was not observed at Bangaru Ammal's marriage. In this state of evidence the presumption in. Hindu Law that the marriage was performed in Brahmu form must be invoked. As we have pointed out under the Hindu Law whether a marriage was in Brahmu form or Asura form the Court will presume even where the parties are Shudras that it was in the Brahmu form. Further where it is proved that the marriage was performed in fact the Court will also presume that the necessary ceremonies have been performed. See 'Mauji Lal v. Chandrabati Kumari'(1911) L.R. 38 I.A.122.). This presumption has not been rebutted in this case. That apart the argument of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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