AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
1962 (11) TMI 62
X X X X Extracts X X X X
X X X X Extracts X X X X
....nbsp; Senior wife Junior wife | | Konda Bommu Naicker Kamayasami Naicker (died 23.10.1873) (died 31. 7. 1901) | | | | Kandaswami Naicker Ponnuthayee Naicker (died 31. 7. 1881) (died 13.3 1938) | Banmuga Valla | Konda Bommu Naicker | ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... paid by July 31, 1931, the mortgage must be deemed to have been fully discharged but in default the properties in Schedule A of the decree were to become the absolute properties of the plaintiff. B Schedule properties i.e., some of the pannai lands and the C Schedule properties, i.e., those already alienated by Bangaru Ammal were released from the mortgage. One K. V. Ramasami Iyer, the Manager of the estate was appointed Receiver of the A Schedule properties and he was directed to deposit the surplus income into court towards the payment of the amount due under the compromise decree. Before the expiry of the period prescribed under the said decree Bangaru Ammal died on December 14, 1930, and her mother Errammal claiming to be her heir on the ground that Bangaru Ammal's marriage was held in 'Asura form' filed I.A. No. 190 of 1931 in the court of the Subordinate judge, Dindigul, for directing the Receiver to hand over the estate to her. Veerappa Chettiar in his turn filed I.A.No.170 of 1932 for directing the Receiver to deliver possession of A Schedule properties on the ground that the term prescribed under the compromise decree had expired and the balance of the amount ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s younger brother and defendants 3 & 9 who were alleged to be the tenants in possession of some of the items of the plaint Schedule properties. The plaintiffs in that suit are the grandsons of one Kandaswamy Naicker shown in the genealogy a paternal uncle of Shanmugavalla Konda Bommu Naicker. They claimed that they are the reversioners to the estate of Bangaru Ammal on the ground that Bangaru Ammal was married in 'Asura form'. It is alleged in the plaint that succession opened in their favour when Vellayammal died on May 2, 1940 and that the compromise decree passed against Bangaru Ammal was not binding on them and that in any view the property set out in Schedule C and C-1 attached to the plaint did not pass to Veerappa Chettiar under the said decree. The contesting defendants in both the suits pleaded that the marriage of Bangaru Ammal was not in 'Asura form', and therefore the plaintiffs in 0. S. 52 of 1944 were not the reversioners to the estate of Bangaru Ammal, that the compromise decree was binding on the estate and that C and C-1 Schedule properties also passed to the decree holder thereunder and that in any view the suit was barred by time. It is seen fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ties and therefore the marriage was Asura. The High Court further held that under the compromise decree only Melwaram right in C and C. 1 Schedule properties passed to Veerappa Chettiar but as there was no clear evidence as to who was in actual possession of the said lands and as the persons in actual occupation of the land were not impleaded in the suit, it was necessary in the interest of the parties to reserve the right of the plaintiffs to recover possession of C and C. I Schedule lands in an appropriate proceedings instituted for the purpose. In regard to item No. 70 of C. Schedule land the High Court agreed with the finding of the Subordinate judge. The High Court also negatived the plea of limitation, with the result A.S. No. 816 of 1947 was dismissed with costs and A.S. No. 83 of 1948 subject to the said modification was dismissed with costs. Hence the appeals. Both the appeals were heard together as they raised common points. The arguments of Mr. A.V. Viswanatha Sastri, the counsel for the appellant, may be summarised thus : The marriage of Bangaru Ammal with a Mannarcottai Zamindar was not held in Asura form and therefore the plaintiffs in O.S. 52 of 1944 being her fat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t present there are only two forms of marriage, Brahmu and Asura. Whatever may have been their comparative merits in the bygone days, they have now come to be recognized as two valid 1, forms of marriage that can be followed without any sense of inferiority by all the castes. Though in remote antiquity the Asura form of marriage night have involved a real sale transaction, at present it would be enough to constitute such a marriage if a ritual form was observed indicating the consciousness of the community or the parties contracting the marriage that it was an Asura marriage. This consciousness may be indicated by the ceremonial giving of Kambu at the time of betrothal or by the bridegroom's party meeting the expenses wholly-or substantially of the marriage. Thai apart in the present case there is clear evidence that the practice in the community to which Bangaru Ammal and her husband belonged that Kambu is given by the bridegroom's party to the bride's party at the time of betrothal and the bridegroom's party bears the expenditure of the marriage which clearly indicate that the bride's father or in his absence by the bride's relatives entitled to give her a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the seers have ordained as proper for Brahmanas : only the Rakshasa form as proper for Kshatriyas, and the A'sura form as proper for Vais'yas and S'udras. Verse 25: Thus out of these five forms of marriage, three are lawful, and two are sinful (unlawful). Let a man never marry a wife either in the Pisacha or in the A'sura form since these two forms are prohibited. Verse 27: The form (of marriage) in which well-attired bride, decorated with ornaments, is given in marriage to an erudite, good-charactered bridegroom especially invited by the bride's father himself to receive her, is called Brahma. Verse 31: The form, in which the bridegroom, on paying money to her father and to herself, out of the promptings, of his own desire, receives the bride in marriage, is called A'sura. Verse 51 : An erudite father of a girl shall not take anything by way of Sulka from her bridegroom. By taking a dowry out of greed, he becomes the seller of his off-spring. Verse 53: Even the acceptance of abovine pair (by the father of the bride from the bridegroom) is designated as a dowry by certain authorities, (the acceptance of) a dowry be it costly, or b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... he wills that is to say a bridegroom who seeks the hand of a bride takes her as he can afford to buy her from her father. The transaction is equated to that of a sale, for all the ingredients of sale were present. If there is any ambiguity that is dispelled by Verse 51 and Verse 54. In Verse 51 Manu makes it clear that by taking a dowry out of greed the father becomes the seller of his off-spring. 'Sulka' means the taking of a gratuity or price. The expression 'dravina' in Verse 31 is clarified by the use of the word 'Sulka' in Verse 51. What is prohibited is Sulka or the price for the bride. Verse 54 brings out the distinction between 'Sulka' or 'dravina' paid by the bridegroom as a price for the bride and the dowry given for the bride as a present out of love or affection or in adoration of the bride. Verse 98 further empbasizes that what Manu prohibits is the sale of a bride for price. A'sura marriage, according to Manu, is a transaction of sale in which the girl is sold for a price. Practically the same meaning though expressed in different phraseology is given by other Hindu Law-givers. The following translations given by Max Mul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at receipt of a dowry for the girl (kanyartham danagrahanam) is prescribed by thus stating the good arising from it (arthavadena) : Vide (1941) 2 M.L.J. 770 at 772. Apte's Dictionary : page 239 : Col.- III. Asura is explained thus : 'One of the eight forms of marriage in which the bridegroom purchase-; the bride from her father or other paternal kinsmen' Manu 331 and Yagnayavalkya 1.61 are cited The said sages and commentators accepted the view expressed by Manu and in effect described A'sura marriage as the transaction where a bridegroom purchases a girl for a price paid to the father of the girl or to kinsmen who are en- titled to give her in marriage. The distinction between the bride's price and the presents to the bride is also recognized. The learned judges of the High Court relying upon the text of Apasthamba observed that 'the payment to the bride's father is for the purpose of complying with Dharma and not as a consideration for an commercial transaction. The interpretation may explain away on Dharmic principles the sordid nature of the transaction, but does not detract from its essential incidents. We, therefore, hold that A'sura m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or commentary taking that view has been cited to us. Indeed the case law on the subject does not countenance any such subsequent development. The earliest decision on the subject cited to us is that ofthe Divisional Bench of the Bombay High Court "Jaikisondas Gopaldas v. Harkisondas Hulleshandas(1876) I. L. R. 2 Bom. 9. '.Green j, defines the Asura marriage at page 13 'The essential characteristic of the Asura form ofmarriage appears to be the giving of money or presents by the bridegroom or his family to the father or parental kinsmen of the bride,, or, in tact, a sale of the girl by her father or other relation having the disposal of her in marriage in consideration of money or money's worth paid to them by the intended husband or his family.' In 'Vijarangam and Damodhar v. Lakshuman and Lakshmi' ((1871) 8 Born. F..C. Reports 244.) West j . gives in interesting background to the origin of the institution of the Asura marriage and observes: "Of the several Shastras called by the plaintiffs and the defendants in this case, all agree that the giving and receiving of money for the bride is the distinctive mark of the Asura form of marriage." In 'Muth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....beads, saffron red powder, etc. in a tray. There was also a pagoda and a fanam in it. There was also an arrangement at that time that the bridegroom's father had to pay certain amount to the bride and the bride's father had also to give some jewels to the bridegroom. It was contended that the marriage was an Asura marriage. The learned judges said that the distinctive mark of the Asura marriage was the payment of money for the bride, and that the payment of a pagoda and 2-1/2 annas could not have been intended to be the consideration for the bride where the bride's father spent thousands of rupees himself and gave presents of considerable value to the bride and the bridegroom. This decision, therefore, emphasises that mere payment of small amounts as a compliment to one of the parents cannot be treated as a consideration for the sale of the bride. It also lays down that all the circumstances of the case will have to be looked into to ascertain whether any amount was paid as price for the bride. A Divisional Bench of the Madras High Court in 'Gabrielnathaswmi v. Valliammai Ammal' (A.I.R. 1920 Mad. 884.) negatived the contention that the mere fact that a bride&....
X X X X Extracts X X X X
X X X X Extracts X X X X
....penditure of the marriage is borne by bridegroom's party cannot in any sense of the term be a consideration given to the father for taking the bride. Ramesam J. sitting singly in 'Samu Asari v. Anachi Ammal' ((1925) 49 M.L.J. 554.) restated his view in a more emphatic form. He observed: 'It seems to me immaterial whether it is the whole of the expenses of the marriage or a substantial portion of it. To the extent the bride's father gets contribution of that kind from the bridegroom's father, he benefits by it; though he does not pocket it, but he spends for the marriage....... At the same time the learned judge observed that under certain circumstances payments made to the bride's parents which are either small or relatively small having regard to the scale in which the expenses of the marriage are incurred do not make a marriage an Asura marriage. This decision therefore makes a distinction between courtesy presents given to the bride's parents and whole or substantial portion of the expenditure incurred by the bridegroom's father. While we agree that courtesy presents to the bride's parents cannot by themselves conceivably make a marriag....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Presidency is concerned, all marriages among Hindus are presumed to be in the Brahma form unless it is proved that they were in the Asura form; in other words, it is incumbent on the party who alleges that a particular marriage was in the Asura form to prove that bride price was paid in respect of the marriage by the bridegroom or his people to the bride's father" and the present given to the bride's father the learned judge remarked that this customary present would not necessarily amount to payment of bride's price. Abdur Rahman J., added that 'if a party wishes to assert that the marriage was Asuric in form, he must establish that some price was paid for the bride in pursuance of either of an express or implied contract to the bride's father or on his account." This judgment we may say so with respect puts the principle on a correct legal basis and brings out in bold relief the distinction between bird's price on the one hand and the presents and the expenditure incurred in respect of the marriage by one or the other of the parties on the other hand Patanjali Sastri J., in 'V.S. Velavutha Pandaram v. S. Suryamurthi Pillai' ((1941) 2 M.L.J. 77....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed the form to the category we call 'disapproved'. When the father accepts money and allows his greed or avarice to sway his judgment, he thereby converts what is intended to be a sacrament into a commercial transaction." With respect we are in full agreement with the observations of the learned judge. Commenting upon the argument built upon the payment of one sovereign to the bride's father the learned judge observed : "In most, though not necessarily in all cases, the payment has lost all its original significance and survives only as a ritualistic form'; it has become a ceremonial symbol devoid of any content or meaning or purpose. x x x x Now when a father gives such a large amount as stridhanam and receives one sovereign in compliance with traditional form it would be very wrong to say that he had been selling or mortgaging the girl and that he received the sovereign from greed or love of gain." The foregoing discussion leads to the following results .-- Under Hindu Law marriage is a sacrament and it is the religious duty of the father to give his daughter in marriage to a suitable person but if he receives a payment in cash or in kind as a consideration for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ving the bride in marriage. The test is two- fold: There shall not only be a benefit to the father, but that benefit shall form a consideration for the sale of the bride. When this element of consideration is absent, such a marriage cannot be described as Asura marriage. As the Asura marriage does not comply with the strict standards of Hindu Law it is not only termed as an unapproved marriage, but it has been consistently held that whenever a question arises whether a marriage is a Brahmu or Asura, the presumption is that the marriage is in Brahma form and the burden is upon the person who asserts the con- trary to prove that the marriage was either an Asura or any other form. With this background let us look at the facts of the case. Though in both the plaints it is stated that Bangaru Ammal had been married in Asura form, no particulars are given but in the evidence the plaintiff's witnesses in one voice depose that the custom in the Rakambala caste to which Bangaru Ammal and her husband belonged, is to give money in the shape of 'parisam' to the bride's father at the time of the betrothal. The witnesses who depose to Bangaru Ammal's marrage say that at th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....am' for taking the bride. Sermalai Naicker who gave evidence in an earlier suit which is marked as P. 11 (a) belongs to Rajakambala caste. In his chief-examination he says that he paid Rs. 200/- as 'parisam' at the time of the marriage and paid Rs. 300/- as "parisam' for the marriage of his son and received Rs. 200/- as 'parisam' for the marriage of his daughter. In cross- examination he says that on the betrothal day only one kalam of cumbu and cash are given to the bride's party and that the Kambu is used by the bride's people and that at the time of the marriage 3 or 4 marakkals of cumbu are again brought which is thrown over the bride and the bridegroom byway of blessing. He adds that throwing of the kambu is a ritual in marriage ceremonies and that Kambu and cash are called "Parisam'. This evidence brings out the distinction between cash paid as the 'Parisam' and Kambu brought to conform with the traditional ritual. R.W. 3 in the earlier suit whose evidence is marked as D. 317 says that he was a guru of the Rajakambala caste and that he performed the marriage of Moolipatti zamindar. He further says that Kambu is taken by the br....
X X X X Extracts X X X X
X X X X Extracts X X X X
....led in their attempt. These passage s therefore do not help the plaintiffs. The next question is whether the expenditure for the marriage was incurred by the bridegroom's party i. e. by the Mannarcottai Zamindar. The learned Subordinate judge held on the evidence that Thevaram Zamindar spent a large amount of money for the marriage but the Mannarcottai Zamindar also spent a sum of Rs. 300/- or Rs. 575/- for the marriage expenses. He expressed the view that if the matter was res- integra, he would have held that the incurring of such an expenditure by the bridegroom's party would not have made the marriage. an Asura marriage but felt bound by some of the decisions of the Madras High Court to come to the opposite conclusion. The learned judges of the High Court came to the conclusion that the marriage expenses in their entirety were borne by the Mannarcottai Zamindar and it must have been either in pursuance of the custom or arrangement among the community. The evidence as regards the custom of the bride-groom's party incurring the expenses of the marriage is unconvincing. Indeed the learned counsel for the respondent does not rely upon custom but he prefers to base hi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt only shows that Mannarcottai zamindar paid about Rs. 300/- but the learned counsel for the respondents argued relying upon Ex. P. 27 that even the balance of Rs. 295/14/in Ex. P. 23 shown as the excess amount spent by Thevaram Estate was paid off by the Mannarcottai zamindar to the Thevaram Zamindar. Exhibit P. 27 is an entry dated September 30, 1885 in the account book of Thevaram Zamindar. It show that the Maha- raja meaning Thevaram Zamindar gave to Thevaram office Rs. 290. It does not establish the respondent's version. The only merit of the contention is that the two figures approximate each other. If that figure represents the amount paid by Mannarcottai Zamindar to Thevaram in full discharge of the amount due from the former to the latter, the entry would have run to the effect that the balance of the amount due from Mannarcottai under Ex.p.23 was paid and it would have been credited in Mannarcottai account. It may have been that the sum of Rs. 290/was the balance out of the amount that Thevaram Zamindar took with him when he went to Mannarcottai for meeting his expenditure. The other accounts P. 25 and P. 26 filed in the case are neither full nor clear and no defi....