A. L. V. R. S. T. Veerappa Chettiar vs I. S. Michael: Durairaja

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1962 Supreme(SC) 379

SUPREME COURT OF INDIA
19th November, 1962.
S.J. IMAM, K. SUBBA RAO AND N. RAJAGOPALA AYYANGAR, JJ.
A. L. V. R. S. T. Veerappa Chettiar (In both the appeals Appellants v.
Versus
1. S. Michael (In C. A.No.131 of 1960)
2. Durairaja deceased) and others (In C. A. No. 132 of 960), Respondents.
Civil Appeals Nos. 131 and 132 of 1960.
Advocates appeared
Mr. A. V. Viswanatha Sastri Senior Advocate (M/s. R. Ganapathy Iyer and K. Parasaran an Advocates and Mr. G. Gopalakrishnan, Advocate of M/s. Gagrat and Co. with him) for Appellants (In both the appeals). Mr. K. Bhimasankaran, Senior Advocate (Mrs. Durgabai Deshmukh Advocate and M/s. A. Narayana Swami and R Thiagarajan, Advocates with him) for Respondents 2 to 4 (In C. A. No. 132 of 1960 Mr. R. Gopalakrishnan, Advocate, for Respondent No. 30 (In C. A. No. 132 of 1960).

Advocates:
A.NARAYANI SVAMI, A.V.VISHWANATHA SASTRI, DURGABAI DESHMUKH, G.GOPALAKRISHNAN, GAGRAT JANEDRA LAL, K.Bhimasankaran, K.PARASARAN ATTORNEY, R.Ganapathy Iyer, R.GOPAL KRISHNAN, R.THIAGARAJAN

Headnote:
HINDU LAW - MARRIAGE - ASURA FORM - ESSENTIAL INGREDIENTS - DISTINCTION BETWEEN BRIDE'S PRICE AND PRESENTS TO BRIDE - PRESUMPTION THAT EVERY MARRIAGE UNDER HINDU LAW IS ACCORDING TO BRAHMA FORM - BURDEN OF PROOF ON PARTY ASSERTING CONTRARY - EXPENDITURE OF MARRIAGE BY BRIDEGROOM'S PARTY NOT A TEST OF ASURA MARRIAGE - PAYMENT OF ONE SOVEREIGN TO BRIDE'S FATHER AS MEMMEKANNOM NOT A CONSIDERATION FOR TRANSFER OF GIRL - MARRIAGE HELD TO BE IN BRAHMA FORM.
Fact of the Case:

Bangaru Ammal, the daughter of Shanumugavalla Konda Bommu Naicker, the zemindar of Thevaram, was married to the Mannarcottai Zamindar in Asura form. After Bangaru Ammal's death, her mother Errammal filed a petition for directing the receiver to hand over the estate to her. Veerappa Chettiar, the son of Chidambram Chettiar, who had a mortgage over the estate, filed a petition for directing the receiver to deliver possession of A Schedule properties to him. The Subordinate Judge dismissed Errammal's petition and allowed Veerappa Chettiar's petition. Errammal died and her nephew Thangachami Naicker filed appeals to the High Court against the said judgments. The High Court dismissed the appeals. Thangachami Naicker filed a suit for setting aside the claim order. Veerappa Chettiar and Thangachami Naicker were made party defendants. The plaintiffs in the suit were the grandsons of Kandaswamy Naicker, 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. The contesting defendants pleaded that the marriage of Bangaru Ammal was not in Asura form, and therefore the plaintiffs in O. 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.
Finding of the Court:

The High Court held that in Bangaru Ammal's marriage the practice of giving Kambu or flour or what is called the taking of Mappetti (millet flour box) before the betrothal was followed and that the marriage expenses were entirely borne by the Mannarcottai Zamindar presumably in pursuance of the practice existing in the community or in pursuance of an arrangement between the parties 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 land 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.1 Schedule lands in appropriate proceedings instituted for the purpose.
Issues: Whether the marriage of Bangaru Ammal was in Asura form.
Ratio Decidendi: Asura marriage is a transaction of marriage whereunder a bridegroom takes a bride for the price paid by him to the bride's father or others entitled to give her and therefore in substance it is a sale of the bride. The essential characteristic of the Asura form of marriage appears to be the giving of money of marriage 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, infect, a sale of the girl by her father or other relation having the disposal of her in marriage in consideration of money s worth paid to them by the intended husband or his family. 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. The test of the Asura marriage is the giving of money or money's worth to the bride's father for his benefit or as consideration for his giving the girl in marriage. 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 giving his daughter in marriage he would be converting a sacrament into commercial transaction. Brahma marriage satisfies the said test laid down by Hindu Law. But from Vedic times seven other forms of marriage were recognized based on custom and convenience. Asura form is one of the eight forms of marriage. The essence of the said marriage is the sale of a bride for a price and it is one of the unapproved forms of marriage prohibited by Manu for all the four castes of Hindu society. The vice of the said marriage lies in the receipt of the price by the bride's father or other persons 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 Asura 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 there under. 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 amount on the marriage functions and allows the bridegroom to incur the whole or part of it, it cannot be said that he has received any consideration or price for the bride. Though in such a case if the bridegroom's father had not incurred the said expenditure in whole or in part, the bride's father might have to spend some money on that account such an indirect result could not be described as price or consideration for giving the bride. Shortly stated Asura marriage is a marriage where the bride's father or any other person entitled to give away the bride takes Sulka or price for giving the bride in marriage. The test is two- fold: there shall not only be 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.
Final Decision: The decrees of the High Court are set aside and both the suits are dismissed with costs throughout. One hearing fee.

Judgment

SUBBA RAO, J. : These appeals filed by a certificate issued by the High Court of Judicature at Madras raise a question of Hindu law pertaining to marriage in Asura form . The material facts may be briefly stated : To appreciate the facts and the contentions of the parties the following genealogy may be usefully extracted :

2. Thevaram is an ancient impartible zamindari in Madurai District. Shanumugavalla Konda Bommu Naicker was zemindar 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 for a sum of Rs. 2,15,000/- in favour of one Chidambram Chettiar, on his death his son Veerappa Chettiar filed on April 16,1925, O. S. 31 of 1925 against Bangaru Ammal in the Subordinate Judges Court, Dindigul for the recovery of a sum of Rs. 5,49,633-8-7 being the balance of the amount due under the said mortgage. The suit was compromised and on July 28, 1928, a compromise decree was passed therein. Under the compromise decree the mortgaged properties were divided into three Schedules A, B and C and it was provided that if a sum of Rs. 3,75,300/- was 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. Ramaswami 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 935

married also 8 other wives of whom the last to die were

(a) Meenakshi Ammal (died 5-6-1938)

(b) Krishna Ammal (died 10-11-1938)

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 due under the decree was not paid to him. In the petition filed by Errammal she raised the question of the validity and the binding nature of the compromise decree on her. After elaborate inquiry on February 1, 1933, the learned Subordinate Judge, though he held that the marriage of Bangaru Ammal was in Asura form , dismissed her petition for the reason that the mortgage was valid and binding on her and allowed the petition filed by Veerappa Chettiar directing the delivery of the possession of A Schedule properties to him. on February 2,1933 Veerappa Chettiar had taken delivery of A Schedule properties and on July 19, 1933 he was registered as proprietor of Thevaram estate by the Collector of Madura.

3. 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 Zemindari he filed O. S.

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