S AUTHIKESAVULU CHETTY Vs. SRAMANUJAM CHETTY

JUDGEMENT

(1.) The suit is brought by the plaintiff-appellant, to recover the stridhanam, properties left by his wife who died without any issue. They are alleged to have been given to her at the time of marriage before the nuptial fire and during the bridal procession. The plaintiff claims to be the heir as the marriage was in the Brahma form. The 1 defendant, the father and the 2nd defendant, the mother of the deceased, contend that the marriage was in the Asura form, that, therefore, they are the heirs. Besides denying the right of the plaintiff to recover any properties in their possession they advance a counter-claim to recover some jewels of the deceased in the possession of the plaintiff. The learned Judge has held that the marriage was in the Asura form and dismissed the suit. This is an appeal from that decision. It is not disputed that if the marriage was in the Brahma form, the plaintiff is the heir, and if it is in the Astira form, one of the defendants and not the plaintiff would be entitled to the stridhanam left by the deceased. The important question, therefore, for consideration is, whether the plaintiff was married to his deceased wife in the Brahma form. The parties are at issue and the evidence is conflicting as to the ceremonies performed at the plaintiff's marriage. It is admitted that on 25 August 1904 took place what appears to be the ceremony of betrothal or Vagdanam, called by the witnesses, Payijdimadupur. On that day some married women of the caste to which the parties belonged proceeded from the bridegroom's house to the house of the bride carrying certain presents consisting of cocoa-nuts, betel and nut, garlands black- beads, saffron, red powder, &c, in a tray. There were also a pagoda and a fanom in it. The arrangement as to expenses and gifts was formally entered into or announced.

(2.) According to the plaintiff's evidence his father said he was going to give a hundred pagoda worth of jewels, that is Its. 350 and the father of the bride, the 1 defendant, said he was going to give jewels of the value of not less than Rs. 5,000 and that he was going to give jewels to the bridegroom also. According to the purohit, defence 1 witness, the bridegroom's people promised Rs. 300 worth of property and the bride's people promised Rs. 5,000 worth of property. After this the bride's party said, according to the purohit, we give the girl to you and the bridegroom's people said we take her. Then after certain ceremonies the black- beads were tied round the bride's neck and all the articles in the tray with the exception of the pagoda and fanom were tied in the girl's waist. As to what was done with the pagoda and the fanom there is direct conflict of evidence. According to the plaintiff's evidence this pagoda and fanom were tied in a piece of cloth smeared over with saffron and with the cocoa-nut was placed in the waist cloth of the bride. Some witnesses say it was so tied in the name of Venkateswar, the God of the Tirupathy temple and the pagoda and the fanom were according to custom afterwards sent to the temple. Other witnesses say that no body cares what becomes of it after it is given to the bride. This is intended to rebut the defence evidence that this is the purchase-money, in consideration of which the marriage took place. According to the defendants the pagoda and the fanom were given to the bride's mother, the 2nd defendant. The purohit swears he took them out of the tray and delivered them to the mother himself. According to him "ancients say this money was given as cooly to the mother for suckling". The defendants rely upon this to show that this is really the consideration money paid by the bridegroom for the purchase of the bride, or at any rate it represents what of old was really the purchase-money and that the marriage must, therefore, be held to be in the Asura" form. Then on the 29 August the marriage ceremonies customary among the class to which the parties belong were performed. As the fact of marriage and its validity in law are admitted, it is not necessary to describe them. There was the gift of the bride decked with jewels admittedly worth more than Rs. 5,000 by the defendants to the plaintiff, bridegroom and there was also Panigrahanom. But according to the purohit and the other defence witnesses, there was no Vivaha Homam, no Sapthapathi. It is not contended that the absence of these ceremonies invalidates the marriage, as it is conceded that these are not customary ceremonies among the community to which the parties belong and that they are not, therefore, performed. But, it is contended, that according to Hindu Law they are essential in the case of Brahma marriage. According to the plaintiff's evidence Homam was performed but it appears to have been Navagraha Homam and not Vivaga homam. We have not been referred to any evidence to show that Sapthapadi formed a part of the marriage ceremony and we must, therefore, accept the evidence of the purohit who is also corroborated by other witnesses that it is not customary among this community to perform Vivaga homam or Sapthapadi and they were not performed in this case. The plaintiff also swears that at the time of the marriage his father told the 1 defendant that only such of the jewels as the latter intended as a gift to the bride should be on her person and that the rest should be removed to which he replied not once but thrice"; that all the jewels that were then on the person of the bride which are worth much more than Rs 5,000 except the head ornaments were intended to be given as a present. This is denied by the defendants ; and though the plaintiff is supported by some witnesses, we are not prepared to accept their testimony which has not been believed by the learned Judge.

(3.) On behalf of the appellant-plaintiff, it is contended that there is a presumption that a Hindu marriage is not in the Asm a form but Brahma, that the evidence in this case shows that there was no bride price paid, but that the father gave his daughter to the bridegroom decked with jewels and that the sloka recited at the ceremony also shows that it was a Brahma marriage. On the other hand Mr. Sundra Iyer contends that the Brahma marriage is primarily intended for Brahmins though no doubt the other castes including the Sudns may have adopted it in some instances, that the Balijas or Kavarais, the castes to which the parties belong, perform their marriages in the Asura form, that the admitted fact that they still retain the ceremony of a gift of a pagoda and a fanom shows that the Asura form has not been discarded by them and that the commission of Vivaha homam and Saptapadi shows that even if the marriage is not Asura it cannot be Brahyna.