TMI Blog1962 (11) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... | | Kandaswami Naicker Ponnuthayee Naicker (died 31. 7. 1881) (died 13.3 1938) | Banmuga Valla | Konda Bommu Naicker | | | | | | | | Dorairaja Muthusami 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19, 1933 he was registered as proprietor of Thevaram estate by the Collector of Madura. On February 2, 1933, Errammal died executing a will dated January 30, 1933, in favour of her nephew Thangachami Naicker. It may also be mentioned that three of the co- widows of Shanmugavalla survived Errammal. They died one after another and the last of them Vellayammal passed away on May 2, 1940. Thangachami Naicker along with one 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form as Mannarkottai zamindar had spent ₹ 300/- to ₹ 575 for Bangaru Ammal's marriage and that circumstance was in view of certain decisions of the High Court would make it an Asura marriage. He further held that the aforesaid compromise decree was binding on the plaintiffs. As regards C and C. 1 Schedule properties lie held that they had passed to Veerappa Chettiar under the compromise decree as part of the Thevaram 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s father for taking the bride but both the courts having rightly held that the said payment was not established by the evidence erred in making out a case of a different consideration for the marriage. The first court held wrongly that the fact that Mannarcottai Zamindar spent ₹ 300/- to ₹ 575/for the marriage expenses would make it an asura marriage while the High Court went further and erroneously held that there was 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the relatives importance of the said two forms of marriages at the present day but only with the conditions laid down by Shastras for the said two forms of marriage and with a question as to which form was adopted in Bangaru Ammal's marriage. Nor are we concerned with a question whether the institution of marriage in Brahmu form is now maintained in its original purity. We are also in these appeals not concerned with any customary 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e into existence the A'sura form was considered to be proper for Vaishs and Sudras but it was prohibited for the Brahmins and Kashatriyas. But Manu was emphatic that the said form of marriage was sinful for all castes including the Shudras. There is no ambiguity in the verses in regard to the general prohibition to all castes' for Verse No. 98 emphasizes that even a S'udra must not take any price for the hand of his daughter when giving away in marriage. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for a fee, who (thus) fall (after death) into a dreadful place of punishment and destroy their family down to the seventh (generation). Moreover they will repeatedly die and be born again. All (this) is declared (to happen), if a fee (is taken-)., Vasishtha-Chapter I-Verse 35. 'If, after making a bargain (with the father, a suitor) marries (a damsel) purchased for money, that (is called) the Manusha-rite.' Narada-Chapter XII-Ver8e 42. When a price is (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of convenience of reference. At page 24 the author says: 'There are eight kinds of marriages recognized in the Sastras :-1, Brahm, where the charges are incurred solely by the girl's father; x x x x x 5, Usoor, where she is taken in exchange for wealth, and married; this species is peculiar in the Wys and Soodra castes, B.S.(Mit), See Munoo, 3.20,34. It is considered as Uscorwiwuha, and stree-soolk, and the money, if unpaid, is an unlawful debt, B-2, 199. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of the contention that where the bridegroom incurs the expenditure of the marriage such a marriage is Asura marriage. But this decision is not a considered one. The appeal being a second appeal, the learned judges accepted the finding of fact given by the Subordinate Judge, namely that the money payment was made to the bride's father and were not prepared to differ from it. The disinclination of the learned judges to interfere in the 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 benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing words :-'Ordinarily the presumption is that whatever may be the caste to which the parties belong, a marriage should be regarded as being in the Brahma form unless it can be shown that it was in the Asura form'. This decision deals with 'parisam' with which we are also concerned in these appeals. This is an authority for the proposition that the use of the word 'parisam' is not decisive of the question that it 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ammal' ((1925) 49 M.L.J. 554.) on the ground that there money was held to have been paid for the father's benefit though utilized by him to meet the expense of the marriage which he must have defrayed out of his own fund and points out also the distinction between payment to the father for his own benefit and payments to the bride received by kinsmen not for their own use. In that case a jewel was presented by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h contribution in that he was relieved to that extent from defraying such expenses himself, the marriage was one in the Asura form. This view has been criticised in the latest edition of Mayne's Hindu Law as not really warranted by the Hindu Law texts, and the point may have to be reconsidered when it arises. Patanjali Sastri, J., again considered this point in Second Appeal No. 2272 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled to give away the bride as a consideration for the bride. If the amount paid or the ornaments given is not the consideration for taking the bride but only given to the bride or even to the bride's father out of affection or in token of respect to them or to comply with a traditional or ritualistic form, such payment does not make the marriage an A'sura 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sam' was paid as consideration for the marriage. On the question of the said alleged practice the evidence does not support it. P. W. I to P. W. 10 depose. that parisam' is paid in cash for marriages in their community varying from ₹ 150/- to ₹ 1,000/-. This evidence has been rightly' disbelieved by both the courts. The evidence does not bear out 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 ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f examination that no 'parisam' is paid in his community. He says that it is rather undignified to receive 'Parisam' and that he has not seen any parisam paid in his caste. Whether this witness is speaking truth or not, his evidence does not support the plaintiff. From the aforesaid evidence it is not possible to hold that either there is a practice 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 head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge amounts on the marriage and gave lot of jewels to Bangaru Ammal must be true, for even in 1895 when the marriage of Bangaru Ammal took place it is inconceivable that the marriage would have been celebrated with a few hundred rupees that was given by the Mannarcottai zamindar. He must have spent much larger amount than that consistent with his status 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dar giving his daughter in marriage. It is contended that the High Court found that there was no 'Kanyadhan' at the time of the Bangaru Ammal's marriage and as 'Kanyadhan' was necessary ingredient of Brahmu marriage, Bangaru Ammal could not have been married in that form. The High Court relying upon the evidence of Veluchami Naicker 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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