Citation Codes

Equivalent Citations

citation codes

Case Number

Second Appeal No. 252 of 1908

Judges

MR. N.G. Chandavarkar
SIR J.J. Heaton

See more information ...

Smart Summary

Structured Summary of the Opinion (Chandavarkar, J.)

Factual and Procedural Background

The property in dispute originally belonged to Dowlatrai Becharlal, who made a will dated 9 October 1889 and died ten days later, leaving two daughters: Ladkore and Mani. Mani was a minor; the District Court of Ahmedabad appointed her maternal grandmother Raliata and her maternal uncle Chunilal guardians of her person, and the Nazir of the Court guardian of her property, under the Guardians and Wards Act. The order expressly enjoined the guardians not to give the girl in marriage without the Court's permission.

Chunilal applied for permission to betrothe Mani to Harprasad and permission was granted; later some disagreement arose and Chunilal unsuccessfully applied for revocation, but nonetheless gave Mani in marriage to another boy in violation of the Court's order. Mani later lost her husband and died childless on 22 November 1905.

Respondents Nos. 1 and 2 in Second Appeal No. 252 brought suit claiming the property Mani left at her death as reversionary heirs of her father Dowlatrai, alleging Mani had only a life interest under Dowlatrai's will and that on her death the property descended to them. At trial the respondents obtained leave to amend the plaint to allege that Mani had taken an absolute estate under the will and that they were her heirs; evidence was led accordingly.

Both Courts below found as a fact that Chunilal received monetary consideration when he gave Mani in marriage and therefore held the marriage to be in the Asura form. On that basis—since Mani died childless and the courts held her stridhan should pass to her nearest relations on her father's side—the respondents were given a decree. This opinion concerns the second appeals from that decree.

Legal Issues Presented

Whether the amendment of the plaint (shifting the respondents' claim from a reversionary claim as Dowlatrai's heirs to a claim as Mani's heirs asserting Mani had an absolute estate) should have been allowed, or whether it impermissibly changed the nature of the suit.
Whether the finding that Mani's marriage was in the Asura form (because Chunilal received money for giving her in marriage) is supported by evidence and legally correct, including whether the presumption of a Brahma-form marriage can be rebutted.
Whether the Asura form requires that only the father or paternal kin may receive bride-price (i.e., whether receipt by a maternal uncle can constitute Asura), and whether payments must have been made to the bride herself to make the marriage Asura.

Arguments of the Parties

Appellant's Arguments (summarised from the opinion, advanced by Mr. Gokuldas)

The amendment of the plaint should not have been allowed because it transformed the nature of the suit: respondents initially claimed as Dowlatrai's heirs but then abandoned that position and claimed as Mani's heirs.
The finding that the marriage was Asura is erroneous because there is no direct evidence that Chunilal (the maternal uncle who gave Mani in marriage as her guardian) received money consideration for the gift.
Even if money was received by Chunilal, that fact would not make the marriage Asura if the marriage rites were performed according to the Brahma form; the presumption is in favour of Brahma-form marriages and that presumption must be applied unless conclusively rebutted.
The Asura form (as classically defined by Manu) requires that bride-price be received by the father or paternal kinsmen (jnati), and therefore, by implication, a maternal uncle receiving money should not constitute Asura under that text.
Mani herself did not receive any money as bride; the Mani-herself-payment point was argued as required by Manu's text.

Respondents' Arguments (as reflected in the record)

The respondents originally claimed the property as reversionary heirs of Dowlatrai under his will; they later amended to allege Mani took an absolute estate under the will and that they succeeded to it as Mani's heirs.
At trial they led evidence to support the amendment and to show that Chunilal received monetary consideration when he gave Mani in marriage, rendering the marriage the Asura form and producing the legal consequence that Mani's stridhan devolved to her father's side on her death without issue.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeds in a series of discrete legal determinations closely tied to facts and textual authorities cited in the opinion:

Amendment of the plaint:
The court held that allowing the amendment was permissible. Although respondents had initially claimed as Dowlatrai's heirs and then changed to claim as Mani's heirs, the substance of the claim remained a request that the Court construe Dowlatrai's will and grant the property to the respondents. It was therefore competent for respondents to abandon one construction and substitute another as their basis of title.
Standard of proof and the finding of Asura form:
The court treated the question whether the marriage was Asura as one of fact. It acknowledged the prima facie presumption that Hindu marriages are of the Brahma form, but emphasized that the presumption is rebuttable by evidence and surrounding circumstances. The Courts below had found, on the evidence and probabilities, that Chunilal received money consideration for giving Mani in marriage, and that factual finding controlled the legal characterization.
Legal effect of pecuniary consideration:
The court explained that where the person who gives a girl in marriage receives pecuniary consideration, the substance of the transaction is a sale (bride-price) and that marks the Asura form. The court held that the presence of Brahma-form rites (e.g., invocation before the sacred fire, saptapadi or seven steps) does not negate the legal effect of the sale; the adoption of Brahma rites cannot “take away the taint of the lower form.” The opinion cites authorities (religious/Smriti and commentaries) on the necessity of certain rites (saptapadi) for the marriage tie and on the differences between Brahma and Asura forms, but treats the taint of pecuniary benefit to the giver as determinative of the form.
Who may give the girl and receive bride-price:
The court considered whether the Asura form arises only when the father or paternal kinsmen receive bride-price. It examined competing Smriti texts: Yajnyavalkya's text emphasizing paternal relations, and the texts of Narada and Vishnu which include maternal relations (specifically mentioning the maternal uncle). The court noted Nilakantha's and other commentators' acceptance of these authorities and applied principles of Smriti interpretation (including the canon that a rule phrased of one member of a class may apply to all similarly situated members).

The court concluded that maternal relations (such as the maternal uncle) may be among those who have the duty to give the girl in marriage and, by parity, may receive bride-price so as to give the marriage the Asura character. This conclusion was reinforced by the fact that in the present case Chunilal was not only a maternal uncle but also the court-appointed guardian of Mani's person, standing in loco parentis at the time of marriage (though his power was subject to Court consent, which he violated). That he received pecuniary benefit rendered the marriage Asura in the court's view.
Whether payment to the bride herself is required:
The court addressed the contention that Manu requires payment to the bride herself as well as to her relations. It relied on Nilakantha's exposition (Sanskara Mayukha) that the relevant taint is the gratuity paid to the giver for his benefit—the bride's personal receipt is not essential to characterize the marriage as Asura. Consequently, the absence of evidence that Mani personally received money did not prevent the marriage from being Asura where her guardian received a gratuity.
Conclusion of analysis:
Applying these legal principles to the found facts—i.e., that Chunilal received monetary consideration when he gave Mani in marriage and that he was a maternal uncle and court-appointed guardian—the court affirmed the conclusions of the Courts below that the marriage was Asura and that Mani's stridhan, on her death without issue, passed to her paternal-side relations. The court therefore found no error in the courts' factual findings or legal application.

Holding and Implications

Holding: The decree of the Court below was confirmed with costs. (The opinion concludes with the concise statement: "Decree confirmed.")

Implications:

Direct effect on the parties: The respondents' decree (awarding the disputed property to them as Mani's heirs on the ground that Mani's marriage was Asura and she died childless) is affirmed; respondents receive costs as ordered.
On broader legal principles: The court applied established Smriti texts and traditional commentaries to reach conclusions about (a) the rebuttable presumption of Brahma-form marriages, (b) the determinative effect of pecuniary benefit to the giver in constituting the Asura form notwithstanding Brahma rites, (c) the inclusion of maternal relations (such as a maternal uncle) among those who may give a girl in marriage and receive bride-price, and (d) the non-necessity of a personal payment to the bride for the Asura taint to exist.
No indication is given in the opinion that the court intended to create a new legal precedent beyond affirming the application of established textual and interpretive principles to the facts of this case. The decision therefore produces the immediate effect of upholding the lower courts' decree and costs, without an explicit pronouncement of novel law beyond the reasoning applied.

Decree confirmed.

R.R

Show full summary ...

Chunilal Pranshankar v. Surajram Haribhai

Chandavarkar, J.:— The facts, upon which the questions of law in the two second appeals turn, are shortly these:—

The property in dispute originally belonged to one Dowlatrai Becharlal. He made a will on the 9th of October 1889, and died ten days later, leaving him surviving two daughters, Ladkore and Mani. Mani being a minor, the District Court of Ahmedabad appointed her maternal grandmother Raliata and her maternal uncle Chunilal guardians of her person, and the Nazir of the Court guardian of her property, under the Guardians and Wards Act. By the order of appointment the guardians of the person of the minor were enjoined not to give the girl in marriage without the Court's permission. Subsequently Chunilal applied to the Court for permission to betrothe the girl to one Harprasad. The permission was granted, but some disagreement having arisen between Chunilal and Harprasad's grandfather, the former applied to the Court for revocation of the order granting the permission. The Court declined to revoke the order; nevertheless Chunilal gave the girl in marriage to another boy. This was in violation of the Court's order.

Some time after that, Mani lost her husband, and she herself died childless on the 22nd of November 1905.

The respondents Nos. 1 and 2 in Second Appeal No. 252 brought the suit claiming in their plaint the property in dispute, which Mani had left at her death, as reversionary heirs of her father Dowlatrai. They alleged that under Dowlatra's will the property had come to Mani but with only a life interest in it; and that on her death it descended to them as Dowlatrai's heirs.

At the trial of the suit the said respondents prayed for amendment of the plaint to the effect that Mani had taken an absolute estate in the property under her father's will and that on her death they were entitled to it as her heirs. The amendment was allowed and evidence led accordingly.

Both the Courts below have found upon the evidence that Chunilal gave the girl in marriage by receiving money consideration for the gift. Upon that fact they have held that the marriage was in the Asura form. The result of that finding being that on Mani's death her stridhan, in default of her issue, must go to her nearest relations on her father's, not her husband's side, the Courts have given the respondents a decree, holding that they are entitled to the property as Mani's heirs.

The first point of law urged in this Second Appeal (No. 252) from that decree is that the amendment of the plaint ought not to have been allowed, since it transformed the nature of the suit into one of a character inconsistent with that originally brought. At first the respondents claimed the property as Dowlatrai's heirs; subsequently they abandoned that position and claimed as heirs to his daughter Mani. There is no inconsistency if we have regard to the substance of the claim. The respondents claimed the property on the strength of Dowlatrai's will. The Court was asked to construe it and to give the respondents a decree for the property. It was competent for them to abandon their first construction and substitute for it another as the basis of their title.

It is next contended that the finding of the Courts below that the marriage of Mani was in Asura form is erroneous in law, be cause there is no evidence that her maternal uncle, who gave her in marriage as her guardian, received money as consideration for it. The question is one of fact and its determination must depend on the evidence of surrounding circumstances and probabilities, it direct evidence of payment of money is not forthcoming.

Then it is urged that, assuming that money was received by Chunilal as consideration for the gift of the girl in marriage, that fact will not give the marriage an Asura form under the Hindu Law, if the marriage itself was solemnised according to the rites prescribed for the Brahma form; and that the Court must presume in the first instance in every case that the marriage was in the latter form.

The prima facie presumption no doubt is that every marriage under the Hindu Law is according to the Brahma form; but it can be rebutted by evidence. And here, according to the findings of the Courts below, it has been rebutted.

Where the person who gives a girl in marriage receives 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 Brahma 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 (see the Agni Puran cited in Shudra Kamalakar, page 108).

Whenever, therefore, it is proved, the Courts must hold the marriage to have been in the Asura form, however much it might be disguised by the adoption of the rites of the Brahma form. That adoption cannot take away the taint of the lower form.

Under the Hindu law, certain forms are common to both the Brahma and the Asura form of marriage. Unless those forms are gone through, the relation of husband and wife is not brought about in either case and there can be no marriage tie. Those forms consist in the invocation before the sacred fire and the seven steps (Saptapadi) taken before that fire by the bridegroom and the bride jointly. As said in the Madana Parijata (page 157, Bibliotheca Indica Series), “it should not be doubted whether the relation of husband and wife is produced in the Asura and other forms of marriage by reason of the absence of the saptapadi or seven steps ceremony therein. Even in those forms of marriage the observance of that ceremony is prescribed by way of command after acceptance.” Those steps taken, the marriage tie becomes indissoluble. (The Hindu Law of Marriage and Stridhan by Sir Gooroodass Banerjee, 2nd Edition, page 89; Madhavacharya's Parashara Samhita, Bombay Oriental Series, Vol. I, part II, pages 88 and 89).

But what distinguishes the one form from the other is that, in a Brahma marriage it is a gift of the girl pure and simple; in the Asura, it is the sale of the bride for pecuniary consideration. If the sale exists, its effects cannot be undone by the form of a gift being gone through.

It is contended by Mr. Gokuldas for the appellant that the true test of the Asura form of marriage is the taking of the bride-price by none but the father of the girl, or, in default of him, by any of her paternal kindred giving her in marriage. In support of this argument the following Smriti of Manu is relied upon:—

“When (the bridegroom) receives a maiden, after having given as much wealth as he can afford, to the kinsmen and to the bride herself, according to his own will, that is called the Asura rite”.

The original in this text for “kinsmen” is jnati, which, Mr. Gokuldas argues, means “paternal kindred.” That no doubt is the meaning, according to certain scholiasts. So also in his gloss on the third verse of Yajnyavalkya in the Chapter on “Impurity,” where the word jnati occurs, Vijananeshwara in the Mitakshara explains the word as meaning samana gatraja sapindas and samanodakas.

But the question is whether this text of Manu uses the word jnati as exhaustive, confining the right to receive the bride-price to paternal relations in the absence of the father, or as illustrative, extending it to all who have the right to give the girl in marriage.

The answer to that question must depend upon whether the duty of giving a girl in marriage devolves in the first instance upon her father, and in default of him, on any of her paternal relations only, or extends to all relations, paternal or maternal.

A text of Yajnyavalkya mentions the paternal relations as being charged with the duty. But Narada and Vishnu(4) include the maternal relations also. The former specifically mentions the girl's maternal uncle. Nilakantha in his Sanskara Mayukha quotes as authorities both the text of Yajnyavalkya and of Narada. Madhavacharya in his Commentary on Parashara Samhita quotes as authority the text of Narada.

No doubt Vijnaneshwara in the Mitakshara quotes only Yajnyayalkya's text and makes no reference either to Narada's or Vishnu's. But no importance attaches to that circumstance. The Mitakshara purports to be a commentary on Yajanyavalkya, and Vijnaneshwara(5) himself enunciates the principle that where all Smritis are of equal importance, and where there is conflict between two or more Smriti writers, we are free to choose any we like. Nilakantha in the Vyvahara Mayukha cites Yajnyavalkya's text that where there is a conflict between two or more Smritis that one should be accepted which is conformable to equity(6).

The rule of the Hindu Shastras that a girl must be given in marriage as far as possible and that she cannot give herself unless there is no relation to give her is founded upon the theory that women have no independence. Her father, or, in his absence, any relation who, as guardian standing in the father's place, has supported and protected her during her virginhood, is charged with the duty. This is pointed out in the Mitakshara, where it is said:— “The gift is enjoined only in the case of a virgin who has been protected by her father and others.” The word “others” being construed cjusdem generis with the word “father”—a construction of which several illustrations are to be found in the writings of the Nibandhakaras or Commentators on Hindu Law—the passage means that, where there is no father, the duty of giving a girl in a marriage devolves on a relation of hers who stands in his place as her legal guardian and has as such protected her.

If, then, the Smritis of Narada and of Vishnu are as authoritative as the Smriti of Yajnyavalkya, the maternal relations of a girl are among the kindred whose duty it is to give her in marriage. And the text of Manu, on which Mr. Gokuldas strongly relies, must be construed as being descriptive, not enumerative, according to the canon of interpretation in Hindu Law, known as ngaya samjatwa or sanna nyayatwa, that a rule, which in terms applies to one individual, who is a member of a class composed of many persons, all possessing the same property or attribute, must be held to apply not only to that individual but also to all the other members of the same class in matters relating to that property, because all of them stand in respect of it on the same footing”.

An instance of the application of this rule of interpretation is to be found in the portions of the Mitakshara and of the Vyavahara Mayukha which deal with partition. There Vijnaneshwara and Nilakantha respectively refer to a test of Manu, which says that if at a partition in a joint familly, consisting of two or more brothers, the elder or eldest deceive the younger brother or brothers by concealing any part of the joint wealth, he (the elder or eldest) shall be punished by the king and deprived of his share. Vijnaneshwara explains that though Manu mentions only the elder brother, the text applies to the younger equally, if the latter be guilty of similar fraud. Nilakantha too says the same.

If, then, the maternal relations of a girl are like the paternal relations in the category of those charged with the duty of giving her in marriage, what Manu says in the text relied upon by Mr. Gokuldas about the paternal relations must apply to the maternal relations also on the rule of interpretation just mentioned. The receipt of bride-price is no doubt condemned by Manu as a sin: but he allows as lawful a marriage in which such receipt enters as consideration for the sale of the girl; and it is difficult to understand why the marriage should be Asura, if the girl happens to be given by one of her paternal relations by receiving a gratuity, whereas it should not be that if the party giving her and receiving the gratuity happens to be one of her maternal relations.

In the present case Chunilal (defendant No. 2), who gave Mani in marriage, was her maternal uncle; and a maternal uncle is mentioned among the guardians competent to give a girl in marriage. Besides, by reason of that relationship he was at the time o£ the marriage the legal guardian of her person duly appointed by a Court of Law. He supplied to her the place of her father. It is true that his power to give her in marriage was subject to the condition of the Court's consent; and he infringed it. But that circumstance cannot affect the question as to the form of marriage, if he was, according to law, her relation and guardian, and as such was competent to receive the bride-price and give the marriage the Asura form.

We are not to be understood as deciding that the conclusion above stated would apply to the marriage of a girl who has been sold in marriage by a person who was neither her paternal nor maternal relation. According to the Shastras, the giving of a girl in marriage is a pious act, and even a person who is in no way related to her may so give her, if she has no relations, or, if there being relations, they are unwilling to discharge that duty. In Madan Ratna Skandha quoted in the Nirnaya Sindhu (page 245, Jnana Sagar Edition) it is said that “it is proper (for a man) to give in marriage according to the (prescribed) religious rites the unmarried daughter of another person, even if she is not of the same gotra as himself, after making her his own (daughter) and by (presenting) her (with ornaments) of gold.” Such a case, when it arises, will have to be determined on its own merits.

Lastly, it remains to notice Mr. Gokuldas's argument that Mani's marriage should not be held to have been in the Asura form, because there is no evidence and no finding that Mani received any money for herself as bride from the bride-groom before marriage, whereas the text of Manu, which defines that form, requires that payment of money as consideration for the gift of the girl in marriage shall be not only to her relations (jnati) giving her but it must be also to the girl. But, as Nilakantha points out in his Sanskara Mayukha on the authority of another text of Manu, the taint of the Asura form lies in the gratuity paid to the giver of the bride for his benefit, not in anything paid to her; and it is the taint which determines the form.

On these grounds the decree of the Court below must be confirmed with costs.

Decree confirmed.

R.R

Chunilal Pranshankar v. Surajram Haribhai

Structured Summary of the Opinion (Chandavarkar, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments (summarised from the opinion, advanced by Mr. Gokuldas)

Respondents' Arguments (as reflected in the record)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Chunilal Pranshankar v. Surajram Haribhai

Comments