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PETITIONER: A.   L. V. R. S. T. VEERAPPA CHETTIAR

       Vs.

RESPONDENT: S.   MICHAEL ETC.

DATE OF JUDGMENT: 19/11/1962

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA

CITATION:  1963 AIR  933            1963 SCR  Supl. (2) 244

ACT: Hindu  Law-Asura marriage-Test of-Difference  between  Asura and Brahma marriage-Presumption that every Hindu marriage is in  Brahma form-Objector must prove the contrary--Effect  of bridegroom bearing expenses of marriage-Kanyadan.

HEADNOTE: The  main question involved in both the appeals was  whether the marriage of Bangaru Ammal was in Asura form or in Brahma form.   The contention of the appellant was that it was  not in Asura form.  Except a bare allegation in the plaint  that the said marriage was held in Asura form, the plaintiffs did not  give  any  particulars  or set up  any  custom  in  the community  to  which the parties to the  marriage  belonged. They had given evidence that ’a sum of Rs. 1000 was paid  as ’Parisam’ to the father of bride but that evidence had  been rejected by both the courts.  Respondents pointed out to the giving  of Kambu by bridegroom’s party to the bride’s  party at  the  time of betrothal and expenditure of Rs.  300/-  by bridegroom’s  party  in  connection  with  the  marriage  of Bangaru Ammal and maintained that it was Asura marriage. Held,  that the marriage of Bangaru Ammal was not  in  Asura form  but  in Brahma form.  There was nothing to  show  that there was a practice in the family to give Kambu as ’Parisam for the bride or Kambu was paid as ’parisam’ at the time  of the  betrothal ceremony in connection with the  marriage  of Bangaru  Ammal.   The father of the bride  had  spent  large amounts and the bridegroom’s party had spent only about  Rs. 300/- in connection with the said marriage.  The expenditure incurred  by  the bridegroom’s party was not and  could  not have  been  the  consideration for  the  father  giving  his daughter  in marriage.  There is a presumption in Hindu  Law that  every Hindu marriage is in Brahma form and  that  pre- sumption has not been rebutted in this case.  The court  was entitled to presume that the necessary ceremony of  Kanyadan must  have been performed.  As no consideration passed  from the  bridegroom to the father of the bride, the father  must be held to have made a gift of the girl to the bridegroom. 245 The essence of the Asura marriage is the sale of a bride for a  price and it is one of the unapproved forms  of  marriage

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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  ornament  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  in  any  way benefit  thereunder.  The fact that the  bridgeroom’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. 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 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. Jaikisondas  Gopaldas         v.  Harikisandas  Hulleshandas (1876) I. L. R. 2 Born. 9, Vijarangam v. Lakshman, (1871)  8 Born.   H. C. Report. 244, Muthu Aiyar v. Chidambara  Aiyar, (1893) 3 M. L.,J. 261, Chunilal v. Surajram, (1909) I.  L.R. 33  Born.  433,  S. Authikesayulu  Chetty  v.  S.  Ramanvjan Chetty"  (1909) 1. L. R. 32 Mad. 512,  Gabrielnathaswami  v. Valliammai  Ammal,  A. 1. R. 1920 Mad. 884,  Ratnathanni  v. Somasundara 246 Mudaliar, (1921) 41 M. L. J. 76, Samu Asari v. Anachi Ammal, (1925) 49 M. L. J. 554; Kailasanath Mudaliar v.  Parasakthti Vadivanni, (1934) I. L. R. 58 Mad. 488, Sivangalingam Pillai v.  K. V. Ambalayana Pillai, A. 1. R. 1938 Mad. 479;  V.  S. Velavutha  Pandaram v. S. Suryamurthi Pillai (1941) 2 M.  L. J.  770  and Vedakummapprath Pillai v.  Kulathinkai  Kuppan, (1949) 2 M. L. J. 804, referred to.

JUDGMENT: CIVIL,  APPELLATE JURISDICTION: Civil Appeals Nos.  131  and 132 of 1960. Appeals from the judgment and decree dated April 4, 1952, of the  Madras High Court in Appeal No. 816 of 1947 and No.  83 of 1948. A.   V. Yiswanatha Sastri, R. Ganapathy Iyer, K.  Parasaran and G. Gopalakrishnan, for the appellants.

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K.   Bhimassankaran, Durgabai Deshmukh, A.   Narayana  Swami and R. Thiagarajan, for the respondents 2 to 4. R.   Gopalakrishnan, for respondent No. 2 (In C. A. No.  132 of 1960). 1962.  November 19.  The judgment of the court was delivered by 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  247 following genealogy may be usefully extracted                            Muthusami Naicker                                    |       ------------------------------------------------            |                                    |          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 |    --------------------------- (died 21.1 1901)    |    |       |        |        |          |          | Dorairaja Muthusami Kama- Parama-                     |  alias  (2nd Plff) yasami sivam Married             | Thanipuli    (3rd Plff)(4th Plff) Errammal            |  chami (died 2.2.1933)     | (1st Plff)      |              |   Bangru Ammual     | (died 14.12.1930)   |                     |                     |     married also 8 other wise of     whom the last to die were:     (a) Meenakshi Ammual (died        5.6. 1938)     (b) Krishna Ammual (died        10.11.1938)     (c) Vellayammal         alias Chinathayammal         (died 2.5. 1940). 248 Thevaram  is  an  ancient impartible  zamindari  in  Madurai District.   Shanumugavalla Konda Bommu Naicker was  zamindar 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,  1921, C.S.  31  of 1925 against Bangaru Ammal in  the  Subordinate judge’s  Court,  Dindigul for the recovery of a sum  of  Rs. 5,49,6338-7  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 & C and it was provided that if a  sum

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of  Rs.  3,75,000/-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. 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 249 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. 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 Zamindari  he  filed  0. S. 2 of  1934  in  the  Subordinate judge’s  court  of Dindigul against  Thanchami  Naicker  and obtained  a  decree declaring his right to the  said  tanks. The  appeal filed by Thanchami Naicker against  that  decree was also dismissed with costs on April 10, 1940.  In  execu- tion  of  the  decree for costs Veerappa  Chettiar  got  the property alleged to be in possession of Thanchami 250 Naicker attached.  One S. Michael (son of Thanchami Naicker) objected to the attachment of the said property on the basis of  a sale in his favour by the alleged reversioners to  the estate  of  Bangaru Ammal.  That petition was  dismissed  on August  23, 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  that suit  Veerappa  Chettiar and Thangachami Naicker  were  made party   defendants.   On  January  31,  1945   the   alleged reversioners  to the estate of Bangaru Ammal filed 0. S.  14 of  1,945  in the Court of the Subordinate  judge,  Dindigul

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against   Veerappa   Chettiar,  his  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.  251  It  is seen from the foregoing narration of facts that  the same  questions of fact and law arise in both the suits  for the  title  of the plaintiffs in 0. S. No. 52  of  1944  was derived under a sale deed from the plaintiffs’ in 0. S.  No. 14  of 1945.  Therefore the plaintiffs’ claim in the  former suit  will  stand or fall on the plaintiffs’  title  in  the latter  suit.   For that reason both the  suits  were  heard together  by the Subordinate judge and appeals arising  from his common judgment by the High Court. The learned Subordinate judge held on the evidence that  the marriage of Bangaru Ammal with the Mannarkottai zamindar was in  Asura form as Mannarkottai zamindar had spent Rs.  300/- to   Rs.   575  for  Bangaru  Ammal’s  marriage   and   that circumstance  was in view of certain decisions of  the  High Court would make it an Asura marriage.  He further held that the   aforesaid  compromise  decree  was  binding   on   the plaintiffs. As regards C and C. 1 Schedule properties lie held that they had passed to Veerappa Chettiar under the compromise  decree as  part of the Thevaram Zamindari and that  the  plaintiffs were not in possession within 12 years of the suit in regard to  item  70  of  the C  Schedule.   On  those  findings  he dismissed  O.S.  No. 14 of 1945 with costs.  In O.S.  52  of 1944  he  held that the plaintiff therein acquired  a  valid title  as he purchased the land in dispute therein from  the plaintiffs in the other suit who are the reversioners to the estate of Bangaru Ammal and that the decree in execution  of which the said property was attached was not binding on  the estate  of said Bangaru Ammal.  In that view he decreed  the said suit. As  against the decree passed in O.S. 52 of  1944,  Veerappa Chettiar  filed an appeal in the High Court of Madras  being A.S. No. 816 of 1947.  As against decree in O.S. 14 of  1945 dismissing the 252 plaintiffs’  suit  they filed an appeal to  the  High  Court being  A.S.  83  of 1948.  Veerappa  Chettiar  filed  cross- objections therein.  Both the appeals were heard together by the High 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

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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 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 father’s uncle’s  grand-children  were not   reversioners  to  her  estate.   According  to   Hindu Dharamshastras  the  main distinction  between  Brahma,  and Asura form of marriages is that while in the 253 former there is a gift of the bride, in the latter there  is a  sale  of  the bride.  Except a  bare  allegation  in  the plaints  that the said marriage was held in Asura  form  the plaintiffs  did  not  give any particulars or  set  tip  any custom in the community to which the parties to the marriage belonged.   They have adduced evidence to the effect that  a sum  of Rs. 1,000/- was paid as parisam by the  Mannarcottai Zamindar to the bride’s father for taking the bride but both the courts having rightly held that the said payment was not established by the evidence erred in making out a case of  a different  consideration for the marriage.  The first  court held wrongly that the fact that Mannarcottai Zamindar  spent Rs. 300/- to Rs. 575/for the marriage expenses would make it an  asura  marriage while the High Court  went  further  and erroneously  held  that there was a general  custom  in  the community  to pay the bride’s price by way of  giving  Kambu grain  and  Kambu  flour at the time of  the  settlement  of marriage  and  that for the bridegroom’s party to  bear  the expenditure  for  celebrating the marriage and that  in  the case  of Bangaru Ammal’s marriage the said Kambu  was  given and  that the expenditure for the marriage was  incurred  by the  Mannarcottai  Zamindar presumably in pursuance  of  the practice  existing  in the community or in pursuance  of  an arrangement  between the parties.  Apart from the fact  that no such custom was pleaded, there was no evidence to sustain the  said custom.  That apart the mere giving of Kambu as  a ceremonial  relic  of  the  past  or  the  bearing  of   the expenditure  on  the  marriage  wholly  or  partly  by   the bridegroom’s   party  could  not  be  a  bride’s  price   as contemplated by the Sastras, for the bride’s father in those events could not be said to have received any price for  the bride.  In short the learned counsel attacks both the  legal and the factual findings arrived at by the High Court. The gist of the learned counsel for the Mr. Bheemasankaran’s contention may 254 be  briefly stated thus: According to Dharam Shastras  there

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were eight forms of marriage in Hindu Law, four approved and four  unapproved.  But as centuries rolled by most  of  them became  obsolete and at 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 away in marriage get a  clear benefit for giving the bride, and further there is  evidence that  the said practice was followed in the case of  Bangaru Ammal’s  marriage.   What  is more to  constitute  a  Brahmu marriage  there should be a ’Kanyadhan’ but in this case  it has  been found that there was no ’Kanyadhan’ and  therefore if  the  marriage of Bangaru Ammal could not  have  been  in ’Brahma  form’  it could have been only in  the  alternative form, namely Asura form. Before we advert to the arguments advanced we would like  to make some general observations. 255 We  are not concerned here with the relatives importance  of the said two forms of marriages at the present day but  only with  the conditions laid down by Shastras for the said  two forms  of marriage and with a question as to which form  was adopted  in Bangaru Ammal’s marriage.  Nor are we  concerned with  a  question  whether the institution  of  marriage  in Brahmu  form is now maintained in its original  purity.   We are  also in these appeals not concerned with any  customary form  of  marriage but only with a  marriage  sanctioned  by Hindu Law, for no custom was pleaded in derogation of  Hindu Law.   But  there  may be a custom in  a  community  not  in derogation  of the Hindu Law but in regard to the manner  of complying  with a condition laid down by Hindu Law. that  is to say if the criterion for an Asura marriage was that there should  be a sale of the bride, there may be a custom  in  a community   in   regard  to  the  manner   of   paying   the consideration’  for the sale.  It may be mentioned  that  in this  case the learned counsel for the respondents does  not rely upon any custom even in the later sense but only on the practice  obtaining  in  the community  in  support  of  the evidence  that  the said practice was  followed  in  Bangaru Ammal’s marriage. The  main question therefore is what are the ingredients  of an  Asura form of marriage.  As the Manu Samhita has  always been  treated  by sages and commentators from  the  earliest time  as  being of a paramount authority, let us look to  it for  guidance.   The following verses from Manu  Samhita  as translated by Manmatha Nath Dutt Shastri read as follows:-- CHAPTER III, Verse 21: They (different types of marriages) are known as the Brahma, Daiva  A’raha, Prajapatya, A’sura, Gandharva,  Rakshasa  and

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Paisacha, which forms the eighth. 256 Verse 24: The four forms of marriage 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) 257 a  dowry  be  it costly, or be it  of  insignificant  value, constitutes the sale of the girl.                          Verse 54 : A  marriage  in which the bride’s relations  do  accept  the dowry  (voluntarily  presented by the  bridegroom’s  father, etc.) is no sale (of the bride), since such a present is but an adoration of the bride done out of love or affection. Verse 98 (of Chapter IX) Even a S’udra must not take any price it. duty or  pecuniary consideration) for the hands of his daughter when giving her away  in marriage.  Such acceptance of money  constitutes  a sale of the girl in disguise. The gist of the verses is that before Manu Smriti came  into existence  the A’sura form was considered to be  proper  for Vaishs and Sudras but it was prohibited for the Brahmins and Kashatriyas.   But Manu was emphatic that the said  form  of marriage  was sinful for all castes including  the  Shudras. There is no ambiguity in the verses in regard to the general prohibition to all castes’ for Verse No. 98 emphasizes  that even  a S’udra must not take any price for the hand  of  his daughter when giving away in marriage. The  next  question is what is the criterion  of  an  A’sura marriage   according  to  Manu.   A  contrast  between   the terminology in the definition of Brahma marriage and that of A’sura  marriage  brings  out clearly  his  intention.   The following  words  stand out in the  definitions.   They  are ’dana’  (giving) ’Kanyapradanam’ (the taking of the  bride), "Dravina’   (wealth),   ’dattava’  (after   having   given), ’Saktitah’ (as much as he can), ’Svacchandya’ (as  according to his will).  The word ’Apradana’ is used in the 258 definition  of A’sura marriage in contradistinction  to  the word  ’dana’  in Brahmu form of marriage, while  a,  in  the Brahmu  form  of  marriage the father makes a  gift  of  the

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bride,  in the A’sura form the bridegroom   takes the  bride otherwise  than by a gift.  In the former the  father  gives the bride decorated with ornaments, while in the latter  the bridegroom takes the bride after giving wealth to the father of the bride and the bride.  While in the former the  father voluntarily gives the bride in the latter the bridegroom out of  his own will pays as much money as he can to the  father and takes his bride.  The words Saktitah’ and  ’Svacchandya’ imply  that the payment is made because the  bridegroom  can and  the  girl is taken because 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 Muller in  the  "Sacred Books of the East’, of 259 the various sages may now be extracted              Baudhayana text 1, II, 20 (7) ’(If the bridegroom receives a maiden) after gladdening (the parents) by money (that is) the rite of the Asuras (asura).’ Verse 2 : ’Now  they quote also (the following verses) It is  declared that  a  female who has been purchased for money  is  not  a wife.  She cannot (assist) as sacrifices offered to the Gods or the manes.  Kasyapa has stated that she is a slave.’ Baudhayana      Prasad Adhyaya 11, Kandika 21-Verse 3 : ’Those  wicked  men  who, seduced by  agreed,  give  away  a daughter  for  a fee, who (thus) fall (after death)  into  a dreadful  place of punishment and destroy their family  down to the seventh (generation).  Moreover they will  repeatedly die and be born again.  All (this) is declared (to  happen), if a fee (is taken-)., Vasishtha-Chapter I-Verse 35. ’If,  after  making a bargain (with the  father,  a  suitor) marries (a damsel) purchased for money, that (is called) the Manusha-rite.’ Narada-Chapter XII-Ver8e 42. When  a  price is (asked for the bride by  the  father  and) taken (by him), it is the form termed Asura. ’Gautama, ’Chapter IV-Verse 11. The  form  of  marriage in which a bride  is  purchased  for money, is called the A’suram.’ 260 Vishnu-Chapter XXIV-Verse 24. If  the damsel is sold (to the bridegroom), it is called  an Asura marriage. ’Yagngavalkya’ : ’The asura by largely giving of money ; the Gandharva by mutual consent; the Rakshasa by forcible taking by   waging  war  and  Paisacha  by  deceiving  the   girl’-

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Translation  of Srisachandra Vidyaamava : 1918 Edition  page 126 : In the Mitakshara the said text is commented upon thus :- .lm15 " The Asura marriage is that in which money is largely given (to the father and others in exchange for the girl). ’Apastamba’:"If  the suitor pays money (for his  bride)  and marries  her  (afterwards)  that (marriage  is  called)  the Asura-rite.’ ’Kautilya’: Arthasastra: Sulkadanat Asura’-the word used is "Sulka" Medhatithi,  in his commentary on Verse 54 of  Manu  Samhita points  out that the receipt of money or money’s  worth  for the  benefit of the girl (Kanyarthe) does not amount to  her sale,  and  is desirable as it tends to  enhance  her  self- esteem and also raises her in the estimation of others,  and concludes  with the observation that 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 261 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 marriage  is  nothing more than 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. It  is  said that the incurring of the  expenditure  of  the marriage  by  the  bridegroom is also  a  consideration  for giving the bride.  In this context reliance is placed on the Law  and Custom of Hindu Castes by Arthur Steel.  This  book was  written in 1868.  The author appears to have  collected the laws and customs obtaining in the Presidency of  Bombay, and  had  compiled them for the purpose  of  convenience  of reference.   At  page 24 the author says: ’There  are  eight kinds  of  marriages recognized in the Sastras  :-1,  Brahm, where the charges are incurred solely by the girl’s  father; x  x  x  x x 5, Usoor, where she is taken  in  exchange  for wealth, and married; this species is peculiar in the Wys and Soodra   castes,  B.S.(Mit),  See  Munoo,  3.20,34.  It   is considered  as Uscorwiwuha, and stree-soolk, and the  money, if unpaid, is an unlawful debt, B-2, 199. The  definition  of Asura by the author does not  carry  the matter further, for it is consistent with that 262 given in the Hindu law Texts but what is relied upon is  his definition  of  Brahmu  marriage as one  where  charges  are incurred  solely  by  the  girl’s  father.   From  the  said

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definition a converse proposition is sought to be drawn  viz : that marriage would be Asura marriage if the charges  were incurred  mainly  by the bridegroom’s father.   Firstly  the definition of Brahmu marriage by the learned Author does not conform  with  the definition of the said  marriage  by  the lawgivers.   Secondly  it does not follow from  the  passage that  if the bridegroom’s father incurs the expenditure  the marriage  is an Asura marriage.  If that be so,  the  author would  have stated in his definition of Asura marriage  that such  incurring of the expenditure would make a marriage  an Asura  marriage.  This valuable compilation of the laws  and customs of the day does not throw any light on the  question now raised before us. Let us now see whether there is any merit in the  contention that the concept of sale for a price has by progress of time lost its content and that at the present time a mere form of sale  irrespective of a real benefit to the  bride’s  father would meet the requirements of an Asura , marriage.  No text 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’.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 (1)  (1876) I. L. R. 2 Bom. 9. 263 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’  (1) 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  ’Muthu Aiyar v. Chidambara Aiyar, the money was paid  by the  bridegroom’s  people  to the  bride’s  father  to  meet expenses  of marriage.  The Subordinate judge found  on  the evidence that the bride’s father received the money for  his own  purposes and not for bride’s benefit and therefore  the marriage  was  an  Asura one.  The High  Court  in  a  short judgment  accepted  the finding and said.  "it  being  found that a money payment was made to Thailu’s father we are  not prepared to differ from the courts below in their opinion as to the nature of the marriage." This decision is relied upon in  support  of  the contention that  where  the  bridegroom incurs  the expenditure of the marriage such a  marriage  is Asura marriage.  But this decision is not a considered  one. The  appeal  being  a  second  appeal,  the  learned  judges accepted the finding of fact given by the Subordinate Judge, namely that the money payment was made to the bride’s father and were not prepared to differ from it.  The disinclination of the learned judges to interfere in the second appeal on a question  of fact cannot throw any light on the  point  that has directly arisen before us. Chandavarkar  J. in ’Chunilal v. Surajram’(3)  accepted  the aforesaid  definition  when he said: ’Where the  person  who gives a girl in marriage received (1) (1871) 8 Born. F..C. Reports 244. (2) (1893) M.L.J. 261.

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              (3) (1909) I.L.R. 33 Bom. 433. 264 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 Brahmu 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." The learned judge  also  accepted the  presumption that every marriage under the Hindu Law  is according  to  the  Brahma form but it can  be  rebutted  by evidence. In ’S.  Authikesavulu Chetty v. S. Ramanujan Chetty’ (1)  at the betrothal ceremony a married woman 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  cocoanuts, betel and nut,  garlands,  black- 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. (1)  (1909) I.L.R. 32 Mad. 512. 265 A   Divisional   Bench   of  the  Madras   High   Court   in ’Gabrielnathaswmi  v.  Valliammai Ammal’ (1)  negatived  the contention  that  the  mere  fact  that  a  bride’s  parents received  what  is known as ’parisam’ it would lead  to  the conclusion that the marriage of the girl took place in Asura form  and not in Brahma form.  The learned judges  observed: "It  may be that parisum is a relic of what in old days  was regarded  as the price for the bride. x x x x The real  test is whether in the community or among the parties the payment of ’parisam’ was tacitly understood as being substantially a payment  for taking the girl in marriage.  That will  depend generally  upon  the  evidence  in  the  case."  They   also reaffirmed the presumption under Hindu Law in; the following words :-’Ordinarily the presumption is that whatever may  be the caste to which the parties belong, a marriage should  be regarded as being in the Brahma form unless it can be  shown that  it was in the Asura form’.  This decision  deals  with ’parisam’ with which we are also concerned in these appeals. This is an authority for the proposition that the use of the word ’parisam’ is not decisive of the question that it is  a bride’s price, but that it must be established in each  case whether the payment small or large, in cash or kind, is made as a bride’s price i. c. as consideration for the bride. In  "Ratnathanni v. Somasundara Mudaliar" (2) a sum  of  Rs. 200/- was paid to the bride’s mother for the expenses of the

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marriage as a term of the contract of the marriage.  On that finding Ramesam.’ J. concluded that the payment was made for the  benefit of the bride’s mother as in the absence of  the payment, she would have had to find the amount in some other way, by borrowing or pledging her jewels or other properties and  therefore the marriage was in Asura form.  The  learned judge  relied  upon  Steel’s observation  that  the  parents should  incur the expenditure of the marriage in the  Brahma form and presumably (1) A.I.R. 1920 Mad. 884. (2) (1921) 41 M.L.J. 76. 266 drew a contrary inference that if the bridegroom’s party met the expenditure it would be an Asura marriage.  The  learned judge  also  relied upon that decision in  ’Muthu  Aiyar  v. Chidambara  Aiyar’(1).  Spencer, J. in a separate  judgement agreed  with him.  As we have pointed out we do not see  any justification in the Hindu Law texts in support of the  view that  the bearing of the expenditure of the marriage by  the bridegroom  is a test of an Asura marriage.  The  fact  that the  expenditure  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’ (2) 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 marriage an Asura one,  we find it difficult to hold that the incurring of  expenditure by a bridegroom satisfies the test of consideration for  the bride. In  ’Kailasanatha  Mudaliar v.  Parasakthi  Vadivanni’,  (3) Varadachar J., speaking for the (1) (1893) 3 M.L..J. 261. (2) (1925) 49 M.L.J. 554. (3) (1934) I.L.R. 58 Mad.  488. 267 Court  lays  down  the test of the  Asura  marriage  in  the following  manner  : "The distinctive feature of  the  Asura form of 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."  The  learned   judge distinguishes  the case of "Samu Asari v. Anachi Ammal’  (1) on  the ground that there money was held to have  been  paid for the father’s benefit though utilized by him to meet  the expense  of the marriage which he must have defrayed out  of his  own  fund and points out also the  distinction  between payment  to the father for his own benefit and  payments  to the  bride  received by kinsmen not for their own  use.   In that  case a jewel was presented by the bride’s  father  and placed  on  the bride’s neck at the time  of  the  betrothal ceremony  as ’ parisam’ and the value of the jewel  was  not even  the  subject  of  a bargain but  merely  left  to  the

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pleasure  of  the bridegroom’s father.   The  learned  judge observed  that  such  a gift could in  no  sense  be  called bride’s price. In ’Sivangalingam Pillai v. K. V. Ambalavana Pillai, (2) the bride’s  father gave a large amount and also jewels  to  the bride  and  plaintiff’s  brother-in-law  on  behalf  of  the bridegroom gave the bride’s father a present of Rs.  1,000/- and a cloth worth Rs. 65/-.  It was also agreed that all the expenses of the marriage should be borne by the  bridegroom. It was contended that the said presents and the incurring of expenditure  on  the marriage was a  consideration  for  the bride and therefore the marriage was in an Asura form.   The Divisional Bench rejected the contention.  Pandrang Row  J.- observed  at  page  481:  "It is  a  well-known  fact  that, whatever  the custom is, the bridegroom and his people  also spend a considerable sum of money in respect of the marriage whenever  they  can afford it.  Such  expenditure  obviously does  not  convert the marriage which is  otherwise  in  the Brahma form into one which is in (1) (1925) 49 M.L.J. 554. (2) A.I.R. 1938.  Mad. 479. 268 the  Asura  form." The learned judge proceeded to  state  at page 480 thus : "So far as our 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’ (1) approached the case if    we may say so  from a correct perspective.  There a sum of  Rs.500/-was paid  by  the  bridegroom  to the  bride’s  father  for  the specific purpose of making jewels for the bride in pursuance of a stipulation for such gift as a condition of giving  the girl  in  marriage.  The learned, judge held that  the  said payment was not bride’s price and did not make the  marriage an Asura marriage.  The learned judge in passing referred to the  case of ’Samu Asari v. Anachi Ammal’ (2), and  observed as  follows  :-"’As  the  father  was  benefitted  by   such contribution  in  that he was relieved to that  extent  from defraying such expenses (1) (1941) 2 M.L.J. 770. (2) (1925) 49 M.L.J. 554. 269 himself, the marriage was one in the Asura form.  This  view has  been criticised in the latest edition of Mayne’s  Hindu Law as not really warranted by the Hindu Law texts, and  the point may have to be reconsidered when it arises." Patanjali Sastri, J., again considered this point in Second Appeal No. 2272  of  1945.  There on the occasion of the  marriage  one

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sovereign  was  given along with the other presents  to  the bride’s  father as Memmekkanoni.  The question  was  whether the mere adoption of this customary form per se brought  the marriage  within  the  category of an  Asura  or  unapproved marriage.   The  learned judge expressed the view  that  the payment of memekanom no longer signifies in substance and in truth  consideration  for the transfer of the girl  but  has survived  as a token ceremonial payment forming part of  the marriage  ritual.   The  said judgment was  confirmed  by  a Divisional  Bench of the said High Court in  ’Vedakummpprath Pillai   Muthu   appellant  v.  Kulathinkai   Kuppan’.   (1) Balakrishna  Ayyar,  J.,  speaking  for  the  Bench   neatly summarised  the law on the subject at page 804 thus  :  "One essential  feature of an Asura marriage, the  feature  which makes  the  form objectionable, is that the  father  of  the bride  receives  a gratuity or fee for giving  the  girl  in marriage.  Ordinarily, it would be expected of every  decent and  respectable  father when he selects a husband  for  his daughter   to  make  his  selection  uninfluenced   by   any considerations other than the welfare of the girl.  But when he  receives  a  payment for his personal  benefit,  a  very objectionable factor would influence his selection and it is clearly  this which the ancient lawgivers took objection  to and  therefore  relegated 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 (1)  (1949) 2 M.L.J. 804. 270 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  giving  his daughter in marriage he would be converting a sacrament into a  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 A’sura  marriage.   There is also nothing in  the  texts  to indicate that the bearing

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271 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 thereunder.  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 as 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 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. 272 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 the time of her betrothal  a  sum  of 1,000/-  was  paid as ’ parisam’.  Both the Courts  did  not accept  this  evidence and they held that it  had  not  been established that a sum of Rs. 1,000/- was paid as  ’parisam’ at the time of the betrothal of Bangaru Ammal.  This finding is not attacked before us. It  is  argued that the evidence discloses that there  is  a practice  in the said caste to give Kambu as IT parisam’  to the bride’s father as a bride’s price and the said  practice supports  the evidence that in the case of the  marriage  of Bangaru   Ammal   also  such  a  ’parisam’   was   paid   as consideration for the marriage.  On the question of the said alleged practice the evidence does not support it.  P. W.  I to  P.  W.  10 depose. that "parisam’ is paid  in  cash  for marriages in their community varying from Rs. 150/- to  Rs. 1,000/-.   This  evidence has been rightly’  disbelieved  by both the courts.  The evidence does not bear out the case of giving  of ’parisam’ in Kambu.  Some of the  witnesses  also depose to the payment of Rs. 1000/- as ’parisam’ at  Bangaru

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Ammal’s  marriage but that was not accepted by  the  courts. The  evidence destroys the case that ’parisam’ was  paid  at her marriage in Kambu.  No witness examined in the two cases says  that Kambu is paid at the marriages of the members  of the  community  or was paid at the time of  Bangaru  Ammal’s marriage as a consideration for the marriage but it is  said that the witnesses who had been 273 examined in the earlier suit whose evidence has been  marked by  consent  in  the  present case  deposes  to  that  fact. Errammal,  the  mother of Bangaru Ammal, whose  evidence  is marked  as  P. 11 (R) deposes that  when  Thevaram  Zamindar married her the ’parisam’ was only Rs. 1,000/- and that when her daughter was married, the ’parisam’ was also Rs. 1000/-. In  cross-examination she says that according to the  custom of the community, it is the practice to bring a mapelli  for the nischithartham (betrothal function) and it is  customary also  to bring cumbu and flour at the time of  the  marriage and  sprinkle  it  in  the  marriage  hall.   This  evidence indicates that the ’parisam’ is only given in cash but Kambu is brought at the time of the marriage and sprinkled in  the marriage  hall presumably for the purpose  of  purification. This evidence does not show that Kambu is given as "parisam’ 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. 274 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 bridegroom’s  party to the bride’s house when the betrothal takes place and that seven  pieces  of jaggery, a cloth etc. are also  taken  and that no money is given in the caste.  We do not see how this evidence supports the practice of paying kambu as ’parisam’. indeed his evidence shows that Kambu is taken only as a part of  the ritual and he is definite that no ’parisam’ is  paid in the- caste. Ramasami Naicker Zamindar of Ammaianaickoor. was examined in the  previous suit and his evidence is marked as D-416.   He is  definite in the chief examination that no  ’parisam’  is paid   in  his  community.   He  says  that  it  is   rather undignified  to receive ’Parisam’ and that he has  not  seen any  parisam  paid in his caste.  Whether  this  witness  is speaking  truth  or not, his evidence does not  support  the plaintiff. From the aforesaid evidence it is not possible to hold  that either there is a practice in the Rajakambala family to give Kambu  as  ’parisam’  for the bride or  kambu  was  paid  as ’parisam’   at  the  time  of  the  betrothal  ceremony   in connection with Bangaru Ammal’s marriage.

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Reliance  is  placed  upon Nelson’s Manual  of  the  Madhura Country  published in 1.865. At page 82  of Part II in  that /Manual the following passage appears :--               "After  this,  the price of the  bride,  which               consists  usually of 7 kalams of kambu  grain,               is  solemnly carried under a canopy  of  white               cloth towards the house of the bride’s father               275               its  approach  being  heralded  by  music  and               dancing.  The procession is met by the friends               of the bride who receive the price, and allege               together to the bride’s house."               Similarly, in Thurston’s Castes and Tribes  of               Southern India published in 1902 in Volume VII               under  the heading ’Thotti Naickers’  at  page               192, the following passage is given               "The bride price is 7 kalams of Kambu and  the               couple  may cat only this grain and  horsegram               until the wedding is over."               The  evidence  adduced in this case  does  not               support  the  said statement.  Even  if  those               formalities  are observed, they are  only  the               relics of the past.  That practice  represents               only  a symbolic ritual which. has no  bearing               upon the reality of the situation.  Indeed the               witnesses  in the present case  realizing  the               ritualistic character of the said  observances               seek  to base the case of the Plaintiffs on  a               more  solid  foundation  but  have   miserably                             failed   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 276 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  unconvinc- ing.  Indeed the learned counsel for the respondent does not rely  upon  custom but he prefers to base his  case  on  the finding   of  the  High  Court  that  the  entire   marriage expenditure was incurred by the Mannarcottai zamindar.   Let us now consider the evidence in this regard in some detail. P.W.  1 says in his evidence that Bangaru Ammal  was  the only  child  of  the Thevaram Zamindar,  that  he  was  very affectionate  to  her  and that he  spent  heavily  for  the marriage  though he was not able to say how much  he  spent. P.  W.  4 also says that Thevaram Zamindar gave her  lot  of jewels and finally gave her his entire estate.  The evidence that  Thevaram Zamindar spent large amounts on the  marriage and  gave lot of jewels to Bangaru Ammal must be  true,  for even  in 1895 when the marriage of Bangaru Ammal took  place

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it  is  inconceivable  that the  marriage  would  have  been celebrated  with a few hundred rupees that was given by  the Mannarcottai  zamindar.   He  must have  spent  much  larger amount than that consistent with his status and position  in life  and particularly when he was celebrating the  marriage of his only daughter. Now  coming  to the documentary evidence in support  of  the contention   that  Mannarcottai  Zamindar  met  the   entire expenditure,  the respondents relied upon P. 22, P.  23,  P. 25,  P.  26 and P. 28.  P. 22 is a letter  dated  August  8, 1885,  written  by  persons  representing  the  Mannarcottai zamindar to the 277 Thevaram  Zamindar office.  Therein he stated  :"You  should soon  get ready there all the materials and samans  for  the shed  and ’Panthal’ in connection with muhurtham.   We  will start  and  come without fail".  This letter does  not  show that Mannarcottai Zamindar gave the money for the  materials and  samans for the said ’Panthal’.  It was only an  intima- tion  that everything should be made ready for the  marriage as  Mannarcottai people would be coming there without  fail. Exhibit  P.  23 is the account of  expenditure  incurred  on Bangammal’s  marriage from 1.9.1895 to 5.9.1895. It is  said that   it   represents  the  amount  spent  on   behalf   of Mannarcottai zamindar and the amount recouped from him.  The document is not very clear.  The account does not appear  to represent  the  entire expenditure incurred at the  time  of marriage  because  the entry about charges for  pounding  50 kalams of paddy shows that 50 kalams of paddy must have been supplied  from Thevaram stores and there is nothing  on  the account   to   show  that  50  kalams  were   purchased   on Mannarcottai  account.  Be that as it may this account  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 278 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  definite conclusion  could  be arrived at on the basis  of  the  said account.    We   therefore   hold  on   the   evidence   and probabilities that Thevaram Zamindar had spent large amounts in  connection with the- marriage and Mannarcottai  zamindar spent  only  about  Rs. 300/- in connection  with  the  said marriage. Such  a  finding  does not bring  the  marriage  within  the definition  of Asura marriage as explained by  us.  earlier. The expenditure incurred by the bridgegroom’s party was  not and  could not have been the consideration for the  Thevaram Zamindar giving his daughter in marriage.

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It is contended that the High Court found that there was  no ’Kanyadhan’ at the time of the Bangaru Ammal’s marriage  and as ’Kanyadhan’ was necessary ingredient of Brahmu  marriage, Bangaru Ammal could not have been married in that form.  The High  Court relying upon the evidence of  Veluchami  Naicker who  is  stated  to  be the Guru  of  the  caste  held  that ’Kanyadhan’  had  not  been  observed  in  Bangaru   Ammal’s marriage.   The learned counsel for the  appellant  contests the  correctness  of  the finding and he  relies  upon  some invitations  in support of his contention  that  ’Kanyadhan’ was  observed in Bangaru Ammal’s marriage but the  documents are not clear on the, point.  The Guru only narrates some of the  ceremonies  held in marriages in the community  but  he does  not expressly state that the ceremony  of  ’Kanyadhan’ was not observed at Bangaru Ammal’s marriage.  In this state of evidence the presumption in. Hindu Law that the  marriage was  performed in Brahmu form must be invoked.  As  we  have pointed  out under the Hindu Law whether a marriage  was  in Brahmu form or Asura form the Court will presume  279 even where the parties are Shudras that it was in the Brahmu form.   Further  where it is proved that  the  marriage  was performed  in  fact  the Court will also  presume  that  the necessary ceremonies have been performed.  See ’Mauji Lal v. Chandrabati  Kumari’(1).   This  presumption  has  not  been rebutted  in  this  case.  That apart the  argument  of  the learned  counsel for the respondents mixes up  an  essential ingredient  of the Brahmu marriage, namely the gift  of  the girl  to  the bridegroom with a particular  form  of  ritual adopted for making such a gift.  In both forms of  marriages a  girl  is given by father or in his absence by  any  other person entitled to give away the girl to the bridegroom.  In the  case  of Brahmu marriage it takes the form  of  a  gift while in the case of Asura marriage as price is paid by  the bridegroom,  ,it takes the form of a sale.  As we have  held that  in  Bangaru Ammal’s marriage no  consideration  passed from  the bridegroom to the bride’s father, the father  must be  held to have made a gift of the girl to the  bridegroom. To  put  in  other words there was  ’Kanyadhan’  in  Bangaru Ammal’s marriage.  We therefore reject this contention. Lastly  reliance is placed on the conduct of the  appellant in  not questioning the correctness of the finding given  by the  learned  Subordinate  judge  in  his  application   for delivery  that the marriage was in Asura form.  The  learned counsel for the appellant sought to explain his conduct  but in  our opinion nothing turns upon it.  If the marriage  was not in Asura form as we held it was not, the conduct of  the appellant could not possibly make it an Asura marriage.   In this  view it is not necessary to give opinion on the  other questions raised in the appeals. In  the result the decrees of the High Court are  set  aside and both the suits are dismissed with costs throughout.  One hearing fee.                        Appeals allowed (1)  (1911) L.R. 38 I.A.122. 280