SUBBA RAO, J. - (1.) THE Judgment of the court was delivered by
(2.) THESE appeals filed by a certificate issued bythe High court of judicature at Madras raise a question ofHindu Law pertaining to marriage in 'Asura form'. Thematerial facts may be briefly stated : To appreciate the,facts and the contentions of the parties thefollowing genealogy may be usefully extracted Thevaram is an ancient impartible zamindari in MaduraiDistrict. Shanumugavalla Konda Bommu Naicker was zamindarfrom 23.8.1876 to 20/1/1901. On his death on 21/01/1901 Bangaru Ammal, his daughter, got his entire estateunder the will executed by him. To discharge the debtsincurred by her father Bangaru Ammal executed on 13/03/1913 a mortgage of her properties for a sum of Rs.2,15,000.00 in favour of one Chidambram Chettiar. On hisdeath his son Veerappa Chettiar filed on 16/04/1921,C.S. 31 of 1925 against Bangaru Ammal in the Subordinatejudge's court, Dindigul for the recovery of a sum of Rs.5,49,633.87 being the balance of the amount due under thesaid mortgage. The suit was compromised and on 28/07/1928, a compromise decree was passed therein. Under thecompromise decree the mortgaged properties were divided intothree Schedules A, B & C and it was provided that if a sumof Rs. 3,75,000.00 was paid by 31/07/1931, the mortgagemust be deemed to have been fully discharged but in defaultthe properties in Schedule A of the decree were to becomethe absolute properties of the plaintiff. B Scheduleproperties i.e., some of the pannai lands and the C Scheduleproperties, i.e., those already alienated by Bangaru Ammalwere released from the mortgage. One K. V. Ramasami Iyer,the Manager of the estate was appointed Receiver of the ASchedule properties and he was directed to deposit thesurplus income into court towards the payment of the amountdue under the compromise decree. Before the expiry of theperiod prescribed under the said decree Bangaru Ammal diedon JUDGEMENT_933_AIR(SC)_1963Image1.jpg 14/12/1930, and her mother Errammal claiming to beher heir on the ground that Bangaru Ammal's marriage washeld in 'Asura form' filed I.A. No. 190 of 1931 in the courtof the Subordinate judge, Dindigul, for directing theReceiver to hand over the estate to her. Veerappa Chettiarin his turn filed I.A.No.170 of 1932 fordirecting the Receiver to deliver possession of A Scheduleproperties on the ground that the term prescribed under thecompromise decree had expired and the balance of the amountdue under the decree was not paid to him. In the petitionfiled by Errammal she raised the question of the validityand the binding nature of the compromise decree on her.After elaborate inquiry on 1/02/1933, the learnedSubordinate judge, though he held that the marriage ofBangaru Ammal was in 'Asura form', dismissed her petitionfor the reason that the mortgage was valid and binding onher and allowed the petition filed by Veerappa Chettiardirecting the delivery of the possession of A Scheduleproperties to him. On 2/02/1933, Veerappa Chettiarhad taken delivery of A Schedule properties and on 19/07/1933 he was registered as proprietor of Thevaram estate bythe Collector of Madura. On 2/02/1933, Errammal died executing a will datedJanuary 30, 1933, in favour of her nephew ThangachamiNaicker. It may also be mentioned that three of the co -widows of Shanmugavalla survived Errammal. They died oneafter another and the last of them Vellayammal passed awayon 2/05/1940. Thangachami Naicker along with one of thewidows filed appeals to the High court against the saidjudgments but those appeals were dismissed by the High courton the ground that they were not maintainable. AsThangachami Naicker interfered with the right of VeerappaChettiar with regard to certain tanks and water courses inZamindari he filed 0. S. 2 of 1934 in the Subordinatejudge's court of Dindigul against Thanchami Naicker andobtained a decree declaring his right to the said tanks.The appeal filed by Thanchami Naicker against that decreewas also dismissed with costs on 10/04/1940. In execu -tion of the decree for costs Veerappa Chettiar got theproperty alleged to be in possession of ThanchamiNaicker attached. One S. Michael (son of Thanchami Naicker)objected to the attachment of the said property on the basisof a sale in his favour by the alleged reversioners to theestate of Bangaru Ammal. That petition was dismissed on 23/08/1944. 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 thatsuit Veerappa Chettiar and Thangachami Naicker were madeparty defendants. On 31/01/1945 the allegedreversioners to the estate of Bangaru Ammal filed 0. S. 14of 1,945 in the court of the Subordinate judge, Dindigulagainst Veerappa Chettiar, his younger brother anddefendants 3 & 9 who were alleged to be the tenants inpossession of some of the items of the plaint Scheduleproperties. The plaintiffs in that suit are the grandsonsof one Kandaswamy Naicker shown in the genealogy a paternaluncle of Shanmugavalla Konda Bommu Naicker. They claimedthat they are the reversioners to the estate of BangaruAmmal on the ground that Bangaru Ammal was married in 'Asuraform'. It is alleged in the plaint that succession openedin their favour when Vellayammal died on 2/05/1940 andthat the compromise decree passed against Bangaru Ammal wasnot binding on them and that in any view the property setout in Schedule C and C -1 attached to the plaint did notpass to Veerappa Chettiar under the said decree. The contesting defendants in both the suits pleaded that themarriage of Bangaru Ammal was not in 'Asura form', andtherefore the plaintiffsin 0. S. 52 of 1944 were not thereversioners to the estate of Bangaru Ammal, that thecompromise decree was binding on the estate and that C andC -1 Schedule properties also passed to the decree holderthereunder and that in any view the suit was barred by time. It is seen from the foregoing narration of facts that thesame questions of fact and law arise in both the suits forthe title of the plaintiffs in 0. S. No. 52 of 1944 wasderived under a sale deed from the plaintiffs' in 0. S. No.14 of 1945. Therefore the plaintiffs' claim in the formersuit will stand or fall on the plaintiffs' title in thelatter suit. For that reason both the suits were heardtogether by the Subordinate judge and appeals arising fromhis common judgment by the High court.
(3.) THE learned Subordinate judge held on the evidence that themarriage of Bangaru Ammal with the Mannarkottai zamindar wasin Asura form as Mannarkottai zamindar had spent Rs. 300.00 to Rs. 575.00 for Bangaru Ammal's marriage and thatcircumstance was in view of certain decisions of the HighCourt would make it an Asura marriage. He further held thatthe aforesaid compromise decree was binding on theplaintiffs. As regards C and C. 1 Schedule properties lie held that theyhad passed to Veerappa Chettiar under the compromise decreeas part of the Thevaram Zamindari and that the plaintiffswere not in possession within 12 years of the suit in regardto item 70 of the C Schedule. On those findings hedismissed O.S. No. 14 of 1945 with costs. In O.S. 52 of1944 he held that the plaintiff therein acquired a validtitle as he purchased the land in dispute therein from theplaintiffs in the other suit who are the reversioners to theestate of Bangaru Ammal and that the decree in execution ofwhich the said property was attached was not binding on theestate of said Bangaru Ammal. In that view he decreed thesaid suit. As against the decree passed in O.S. 52 of 1944, VeerappaChettiar filed an appeal in the High court of Madras beingA.S. No. 816 of 1947. As against decree in O.S. 14 of 1945dismissing theplaintiffs' suit they filed an appeal to the High courtbeing A.S. 83 of 1948. Veerappa Chettiar filed cross -objections therein. Both the appeals were heard together bythe High court. The High court held that in Bangaru Ammal'smarriage the practice of giving Kambu or flour or what iscalled the taking of Mappetti (millet flour box) before thebetrothal was followed and that the marriage expenses wereentirely borne by the Mannarcottai Zamindar presumably inpursuance of the practice existing in the community or inpursuance of an arrangement between the parties andtherefore the marriage was Asura. The High court furtherheld that under the compromise decree only Melwaram right inC and C. 1 Schedule properties passed to Veerappa Chettiarbut as there was no clear evidence as to who was in actualpossession of the said lands and as the persons in actualoccupation of the land were not impleaded in the suit, itwas necessary in the interest of the parties to reserve theright of the plaintiffs to recover possession of C and C. ISchedule lands in an appropriate proceedings instituted forthe purpose. In regard to item No. 70 of C. Schedule landthe High court agreed with the finding of the Subordinatejudge. The High court also negatived the plea oflimitation, with the result A.S. No. 816 of 1947 wasdismissed with costs and A.S. No. 83 of 1948 subject to thesaid modification was dismissed with costs. Hence theappeals. ;