1. The question raised by this appeal from the decree of the First Class Subordinate Judge of Ahmedabad relates to the succession to the estate of one Bai Manek, the widow of Somnath Panachand. Bai Manek died childless on June 26, 1933, leaving considerable property which had been devised to her under the will of her husband dated March 26, 1921. It has not been seriously disputed in this appeal that the will conferred an absolute estate on Bai Manek. The following passage in the will which relates to the said devise is in these terms:
If God wishes and I die of whatever properties that remain after my death I make my wife Bai Manek its Malek or waras (owner or heir). So the said Manek should after my death take all my properties in her possession in full and independent authority and should out of that perform my twelve months death ceremonies and give after death gifts and dinner as she likes and what remains after that Bai Manek should enjoy or use or sell or mortgage or give away in gift or by will or do whatever she pleases with it.
2. We agree with the learned trial Judge that the above words confer an unrestricted and absolute estate of inheritance, Bai Manek being made the malik or absolute owner of the estate.
3. Bai Manek died intestate and her estate is now in the possession of her husband's nephews, the defendants, who are also his reversioners. The plaintiffs are the nephews of Bai Manek being her brother's sons, and they claim preferential right to succeed on the ground that Bai Manek was married to her husband in the asura form, and that the estate devised to her by her husband being technical stridhan according to the Vyavahara Mayukha, her heirs would be the plaintiffs, the sapindas of her father in preference to those of her husband. The defendants have contended to the contrary. The defence was really of a twofold character : first, that the marriage was according to the customary natra form without payment of any bride price and that the only payment made on the occasion by the husband was for the wife's palla; and, secondly, that, even if the payment was for bride price in reality, the nearest heir alive and entitled to succeed, being the sister of Bai Manek according to the Mayukha, the plaintiffs have no right to claim the estate.
4. Upon the contention as to the form of marriage the presumption undoubtedly would be in favour of the approved and not unapproved form-see Mussumat Thakoor Deyhee v. Rai Bdluk Ram (1866) 11 M.I.A. 139 and Hira v. Hansji Pema I.L.R. (1912) Bom. 295 : 14 Bom. L.R. 1182. The importance of the distinction has been properly appreciated in the Court below, for, it has not been denied and it is clear upon authority that under the Mayukha the form of the marriage affects the devolution of the stridhan of an issueless woman-see Bai Kesserbai v. Hunsraj Morarji . On the question of the form of marriage the learned trial Judge has held that the payment of Rs. 1,000, which was admittedly made by the husband, was not ' Pala' but bride price given to her brother Khushal Ramji in consideration of his consenting to give his sister in marriage to Somnath. He accordingly held that the plaintiffs being the nearer heirs to the stridhan as sapindas of the deceased father of the woman were entitled to succeed in preference to her husband's sapindas, the defendants. Accordingly a decree in terms of the prayer in the plaint was made in the plaintiffs' favour. Against that decree the defendants have filed this appeal.
5. Both sides have led oral as well as documentary evidence regarding the nature of the payment of Rs. 1,000 on the occasion of this marriage. The finding on that question is clearly decisive of the principal controversy in this case. Ordinarily the question of the onus of proof in the circumstances would assume an academic interest. But the learned trial Judge thought that the plaintiffs' oral evidence was necessarily weak, discrepant and exaggerated, and the defendants' evidence no better. He therefore preferred to proceed upon the balance of probabilities. The judgment consequently is largely occupied by discussion of questions of credibility and probability to which the evidence gives rise. In considering that evidence we have throughout borne in mind the importance of attaching weight to the views of the learned trial Judge and also the circumstance that so far as the principal issue involved is concerned, the onus is on the plaintiffs to establish their case by something more than grave suspicion.
6. It may be noted that Bai Manek came from a family of Modh Ghanchis of Morvi State, and at the time of the death of her first husband she was between twenty-six to twenty-eight. She was living as a widow with her brother Khushal. It appears that she contracted her second marriage with Somnath when she was about thirty to thirty-two. Her husband, who was a few years younger than herself, was residing at the material time at Ahmedabad where the contract of marriage took place, The actual marriage or natra was celebrated in Morvi on October 22, 1902. It has been explained to us that widow remarriage in Gujarat is usually described as 'natra' which by itself does not signify the form of the marriage. In the matter of rituals and ceremonies, however, it is apparent from the evidence, particularly of the priest (Gor), that the custom among the caste plays an important part. In dealing with the question of payment it is fair to assume that a contract between fully grown-up people would naturally be brought about by freedom of action and choice and with the fullest consciousness of their own interests. The story that the bride allowed her brother to be benefited under her marriage contract would, therefore, at any time stand in need of careful analysis. It may be borne in mind that the plaintiffs themselves have no personal knowledge of the transaction, and it is to be expected in such cases that the witnesses who come forward to support an event which has occurred thirty years ago would be influenced by their own leanings and more or less, partisans. It is a circumstance of significance that all the plaintiffs' witnesses are the relatives of their mother, and there is not a single witness coming from the side of their father. The principal witness was the mother's brother Hargowan Gangaram (exhibit 70) who has apparently taken the leading part in this litigation. The remaining witnesses are his relatives and connections. Dealing with Hargowan's evidence (exhibit 70) it is curious that he possesses no information of Manek's family and her first marriage. In his evidence he has laid emphasis on two controversial points in the case : first, that no contract of natra has ever been entered into in writing in his caste ; and, secondly, that when bride price is received according to the Morvi State rules two percentage of the amount is charged by the State from the party receiving it. The importance of the denial of the written contract lies in the fact that, according to the defendants, Hargowan had himself written out the contract containing the terms of the natra and the amount which the bridegroom had agreed to pay before and at the ceremony. The defendants have relied upon that document as displacing the story of the plaintiffs, for, according to them, the nature and character of the payment is expressly set out therein. That document, which is exhibit 116 in the case, was put to Hargowan, and he has emphatically denied having ever written it. The other witnesses who came to support him both on the question as to the custom relating to contracts of widow remarriage and also in regard to payment of bride price were his own mother-in-law (exhibit 74), the latter's brother (exhibit 72), his wife's uncle (exhibit 71) and the plaintiffs' maternal aunt (exhibit 75). There is divergence of views expressed by these witnesses as to the custom in question, and having regard to the production at least of one written contract by the defendants' witness Shamji (exhibit 108), it must appear that the version of Hargowan is not correct. Apart from the discrepancies in regard to particulars as to payment and the circumstances which brought them together, it is noticeable that these witnesses have confessed their ignorance as regards several details which their supposed association and friendship with the family might have rendered available to them. There is uniformity in their statements only in respect to the payment of Rs. 1,000 as bride price to Khushal. Such evidence is open to the comment made upon it by the learned trial Judge, and after carefully reading that evidence I must confess that it has failed to inspire confidence in me. It is true that the defendants' evidence is not free from the taint of exaggeration and partisanship. But that fact cannot place the plaintiffs in a more favourable position. The learned Judge thought that the oral evidence of the plaintiffs, notwithstanding its weakness and exaggeration and the discrepancies in the statement of one witness or the other, could not be disbelieved because it was consistent with probabilities and there was no strong reason to displace it. In other words, he has preferred to rely upon it not because of its inherent trustworthiness but because the probabilities support it. It may not therefore be improper to say that the conclusion is based principally on the probabilities of the case.
7. Turning then to the probabilities, the principal circumstance relied upon in the plaintiffs' favour is that there is preponderance of males over females in the community which perhaps resulted in Somnath taking as his first wife a widow. The fact that there are several persons in his family who could not many early and who are celibates, has been imported as a reason to prove the necessity of paying a bride price. The conditions under which people live cannot be regarded as a matter to be governed by uniform practice or principle. It is a matter of inclination as to which personal considerations play an important part. It may be noted that the comment of the learned Judge does not arise from the evidence, and is largely based upon conjecture.
8. The next circumstance to which criticism has been devoted is the interpretation of the Morvi State rule regarding the levy of tax by the State in connection with payments made at first and second marriages. The rules are described as 'Rules of Modhia Caste' published in the 'State Gazette' in 1896 (vide exhibit 67). The first part of those rules refers to marriages in general. The second part, which is material, is expressly in reference to 'Ghar gharna (natra).' The translation of the relevant rule is as follows:
Two per cent. should be given to the Darbar out of the amount received for a girl of Morvi (Morvi Kania Mate).
In its literal sense the rule does not necessarily refer to bride price. At least the language is susceptible of the construction that the payment received for palla might be subjected to taxation. The plaintiffs produced a document purporting to be an entry of Rs. 20 by the State showing receipt of the tax on the basis of two per cent. from Bai Manek's brother Khushal. Even that statement does not carry the case any further. It is in these terms (vide exhibit 66):
Rs. 20-0-0 credited to the income of caste Dawa at the rate of 2 per cent. on Rs. 1,000 of the marriage got done by Modhia Khushal Ramji of his sister Bai Manek with Modhia Somnath Panachand of Ahmedabad.
At best the rule according to this document is equivocal. If there was any doubt as to the practice prevalent in accordance with the State's interpretation of this rule, perhaps the evidence of the Revenue Commissioner of the State would have been useful, although strictly speaking his interpretation of the rule would not be admissible. The Revenue Commissioner has been examined in this case, and his statement directly bearing upon this point is to the following effect:
It is stated in Clause (1) under the heading Ghar Gharna that whatever amount is taken for a bride of Morvi 2 per cent. should be paid to the Darbar by him.
That interpretation certainly does not support the plaintiffs' hypothesis even if it is not directly favourable to the defendants' case. In that connection it will be material to note that the defendants have led evidence of their witness Shamji (exhibit 108) to prove that on the occasion of his sister's marriage palla money was received and that even upon that amount the State charged two per cent. tax under the rules. He was supported in that respect by the contract in regard to the palla (exhibit 110), and also an extract from the entry in the State records relating thereto. In the former there is express mention of palla, whilst the entry of the State records (exhibit 143) merely says that 'Rs. 16 on Rs. 800 were taken according to the caste rules when daughter of Modhia Parsotam Kunverji was married at Ahmedabad. For the same at 2 per cent.' There is no reason therefore to assume that the rule in regard to remarriage enforces the payment of duty only on bride price and not on palla. The learned trial Judge has discarded that evidence on the ground that the tax was probably received through mistake and that the contract between the parties intended to conceal the real agreement to preserve the honour of their family. That conclusion and other digression on the ratio legis I think was illegitimate.
9. Lastly, the learned trial Judge has discarded the defence suggestion because the evidence did not disclose that payment was directly made to the woman and there was no evidence that Khushal to whom payment was according to the witnesses made was her agent for the purpose of receiving the ' palla.' It is also said that the writing (exhibit 116), having not been properly proved and appearing in a book of Somnath's employer one Narsidas, could not properly be looked upon as a piece of evidence contradicting Hargowan's story. Now, when Hargowan was examined he was shown the book (exhibit 116) and his denial of his being the author of the document recorded. The book was produced by Narsidas' son as one of the books out of some others which were preserved in the family under his father's instructions. Beyond the fact that he is the son of a quondam employer of Somnath nothing is suggested that he was influenced by personal considerations in giving evidence in this case. The book contains numerous other receipts regarding which no investigation was directed. It is a miscellaneous book of account, and other transactions with numerous pages blank. On account of its condition and appearance perhaps it is likely to create suspicion and might be insufficient in itself to counteract the force and effect of cogent and reliable circumstances. But at the same time it seems to me that the fact that it bears the adhesive stamp of the Victorian time and is produced by a disinterested stranger have not been given due weight by the learned trial Judge. It cannot be forgotten that the witness who put forward such a document with a deliberate object of supporting a false case was risking without any personal benefit a criminal proceeding of a very serious character. It must be conceded that when coupled with these circumstances there is evidence of an expert to demonstrate that it was Hargowan who wrote it, the Court would be slow to make adverse comment upon it until the circumstances were satisfactorily explained. Now, the only person who could explain the falsity of that suggestion was Hargowan; and he could do so by demonstrating that there is no similarity between the handwriting in the disputed document and his genuine handwriting. But notwithstanding the attempts on the part of the defendants to procure Hargowan for re-cross-examination, according to the bailiff's report (exhibit 129), he failed to respond to the attempt by not allowing the summons to be served on him.
10. It has been pointed out that there are other circumstances appearing from the document which are sufficient to falsify it. One of those circumstances relied upon is that the signature of the attesting witness Mulji Purshottam has been fabricated, for, according to his son's statement (exhibit 86), Mulji was illiterate and unable to sign his name. Apparently the son was not born when the document was written, and merely because later on occasions the son was the amanuensis of his father it could not be said that the latter was illiterate. Even the suggestion that Mulji's signature was made by some one on his behalf, could not deprive the defendants of the weight due to the other circumstances in their favour. The criticism as to the alleged manner of payment and other similar points comes in my opinion to very little. Even apart from the document (exhibit 116) we are of the opinion that the learned trial Judge has arrived at the conclusion on a precarious balance of probabilities omitting from his consideration the fact that Bai Manek in her own interests would have taken the money herself for consenting to marry Somnath, instead of allowing her brother to profit by it, and, that the plaintiffs notwithstanding their knowledge of the facts did not prevent the defendants from taking possession of her estate after her death in 1933. In our opinion the plaintiffs' evidence is not sufficient and reliable to displace the presumption that the marriage was in an approved form.
11. In view of that conclusion the alternative ground of defence does not arise for consideration. But inasmuch as the point has been argued at great length I should like to express my own views in the matter. I was not much impressed by the first part of the argument as I have understood it. The suggestion is that asura form is restricted to maiden's marriage, and that widow remarriage being foreign to Hindu orthodox notions, and, that the Hindu law as opposed to custom having imposed disabilities on such marriages, no special rules as regards the celebration of widow remarriage have been laid down by the shastras. Consequently proceeds the argument the eight recognized forms of marriage must be presumed to have been intended to apply to the marriage of a maiden. The underlying implication of Mr. Thakor's argument is that natra or widow's marriage is in a special category of its own, and does not become unapproved or asura even on payment of bride price. There is no authority cited in support of that view either from the texts or the recognized commentaries. It seems to me that the sacramental idea attending marriage among Hindus would apply with equal force to a widow's marriage. There is nothing in the enactment of 1856 (Hindu Widows Remarriages Act) to deprive the parties to the marriage from adopting any of the forms prescribed by the Hindu shastras if they chose. In my opinion the taint, if I may say so, implicit in the unapproved form does not attach so much to the ceremony as to the contract itself. Therefore there is no reason for holding that it cannot attach to natra if the marriage contract discloses it.
12. With regard to the second part of the argument, the question formulated for decision is, whether upon the interpretation of the texts the place of a sister in the order of succession to the technical stridhan of a widow governed by the Mayuka who has married in an unapproved form and died childless should be after or before the brother's son. Neither the Mitakshara nor the Mayukha assigns to a sister a special place among the heirs of stridhan property. According to the Mayukha she is expressly mentioned as an heir to males. Apart from statute (Hindu Law of Inheritance Amendment Act II of 1929) her place in the Bombay Presidency is determined by a series of decisions. It is immediately after the father's mother both under the Mitakshara and the Mayukha-see Bhagwan v. Warubai I.L.R. (1908) 32 Bom : 10 Bom. L.R. 389 and Shidramappa Nilappa v. Nelawabai I.L.R. (1932) 57 Bom. 337 : 35 Bom. L.R. 397. It is the respondents' contention that where the texts are silent in regard to the sister's place it would be proper to follow the same order of succession to stridhan as to the property left by males. And it is pointed out that by doing so the texts of Vijnaneshwara and Nilakantha could be harmonized. The parties are governed by the Vyavahara Mayukha which is the prevailing authority in Gujarat. It cannot be disputed that the estate having been devised to the widow Bai Manek by her husband it would be Bhartridatta and therefore technical stridhan. The Mitakshara in dealing with the inheritance to the property of a woman who is married lays down the following rule of succession placitum 11 of Chapter II, section XI, Stokes Hindu Law (pp. 460 and 461):
Of a woman dying without issue as before stated, and who had become a wife by any of the four modes of marriage denominated Brahma, Daiva, Arsha and Prajapatya, the (whole) property, as before described, belongs in the first place to her husband. On failure of him, it goes to his nearest kinsmen (sapindas) allied by funeral oblations. But, in the other forms of marriage called Asura, Gandharba, Rakshasa and Paicacha; the property of a childless woman goes to her parents, that is, to her father and mother. The succession devolves first (and the reason has been before explained,) on the mother, who is virtually exhibited (first) in the elliptical phrase pitrgami implying 'goes (gacchati) to both parents (pitarau;) that is, to the mother and to the father'. On failure of them, their next of kin take the succession.
13. Nilkantha Bhatta in dealing with stridhan has interpreted the above passage in the Mitakshara as follows (see Stokes Hindu Law, Chapter IV, section X, paragraph 28 (p. 105):
The same author expounds the succession of kindred [Bandhava] to be according to the different kinds of marriage : 'The property of a childless woman married in the form denominated Brahma, or in any of the other four [unblamed modes of marriage,] goes to her husband : but if she leave progeny, it will go to her daughters; and in other forms of marriage [as the Asura, &c.;] it goes to her father, and mother, on failure of her own issue'. [In the one case,] if there be no husband, then the I nearest to her in his [tat] own family takes it and [in the other case], if her father do not exist, the nearest to her in [her] father's family succeeds, [for the law that :] ' To the nearest sapinda, the inheritance next belongs,' as declared by Manu denotes, that the right of inheriting her wealth, is derived even from nearness of kin to the deceased [female] under discussion-and, though the Mitakshara holds 'that on failure of the husband, it goes to his [tat] nearest kinsmen [sapinda] allied by funeral oblations ; and,' on failure of the father, then to his [tat] nearest sapindas; yet, from the context it may be demonstrated, that her nearest relations are his nearest relations; and [the pronoun tat being used in the common gender,] it allows of our expounding the passage those nearest to him, through her, in his own family : for the expressions are of similar import.
It will be observed that there is an apparent discrepancy between the Mayukha and the Mitakshara. The latter speaks of the husband's nearest sapinda and of the father's nearest sapinda, whilst the Mayukha speaks of the woman's nearest sapinda through her husband and her nearest sapid through her father. The question is whether they both mean the same thing in regard to succession to woman's stridhan of this character. If they meant the same thing, the question would not present much difficulty, for according to the Mitakshara if the marriage was in an unapproved form the father and his nearest sapindas would succeed. That interpretation of the Mitakshara was accepted in Raju Gramany v. Ammani Ammal I.L.R. (1906) Mad. 358, where it was held that where the marriage was in an unapproved form the sister as the daughter of the father would succeed in preference to the sister's son.
14. Mr. P.V. Kane in his treatise on the Vyavaharamayukha makes the following observations on the above explanation of Nilakantha (p. 299):
That explanation distinctly makes the woman the proposita and says that the heir is to be found through the husband or father as the door. Therefore the Mitakshara and the Mayukha refer to the same heirs and there is really no conflict between the two.
15. That criticism is borne out by the elaborate discussion on the point in the judgment of Chandavarkar J. in the full bench case of Tukaram v. Narayar, Ramchandra I.L.R. (1911) 36 Bom. 339. The full bench was considering the case of the inheritance to a deceased Hindu maiden leaving surviving her father's sister and her father's male gotraja sapindas five or six degrees removed, and they applied the above rule of the Mayukha by explaining that Nilakantha did not create a new line of succession but he was trying to harmonize the Mitakshara expression, and that the heirs according to both were the same. The full bench approved of the construction suggested by Balambhatta that 'husband' means 'husband and his nearest Salinas' and 'father' means 'father and his nearest sapindas.' Accordingly the following conclusion was reached (p. 349):
The Mayukha expresses the same rule in another form with a view to remove the seeming anomaly so as to be free from the comment which the Mitakshara's expression might be supposed to invite. What the Mitakshara calls the nearest sapinda of the husband of the woman and the nearest sapinda of the father of the woman, the Mayuka terms the woman's nearest sapinda through her husband in the one case and the woman's nearest sapinda through her father, in other case.
16. Chandavarkar J. has explained the reasoning of the Mayukha thus (p. 352):
When, therefore, the Mayukha speaks of a woman's nearest sapinda through her husband or through her father as the nearest sapinda whom we get as we enter the husband's or the father's family (kula), with the husband or the father as the door for entrance, the meaning is that for her nearest sapinda we must search for the husband's or the father's own sapinda.
That interpretation which has been accepted by the full bench is binding on this Court. Although the competition there was not between the sister and the brother's son, in relation to a married woman's estate, the principle laid down must apply to the property of a woman married in the unapproved form as she is deemed a maiden continuing to belong to the father's family see Janglubai v. Jetha Appaji I.L.R. (1908) 32 Bom. 409 : 10 Bom. L.R. 522.
17. We have therefore to decide the contest by reference to the nearness of the claimant to the father of the woman. In fixing the place of the woman's sister or in other words the daughter of the father of the deceased thet order according to the list of heirs in the compact series must be followed. The daughter according to that list is postponed to the son's son, that is, the brother's son of the deceased woman, whose position 'as proposita is merged in the father.' It has been argued that according to the Hindu shastras proximity of relationship or propinquity is the governing factor, and that applying that test to the succession to stridhan property the sister should be preferred being the nearest of kin to the deceased woman. It is also said that as in the scheme of succession to a married woman's estate daughters in respect to certain species of stridhan are preferred to sons, a sister should be given preference to brothers and brothers' son. That reasoning in my opinion is obnoxious to the principle laid down by the full bench and would militate against the possibility of harmonizing the Mayukha with the Mitakshara. The rule of harmony which has been recognized and generally followed in this Court is this see Bhagwan v. Warubai I.L.R. (1908) 32 Bom. 300 : Bom. L.R. 389:
Where the Mitakshara is silent or obscure, the Court must, generally speaking, invoke the aid of the Vyavahara Mayukha to interpret it, and harmonise both the works, so far as that is reasonably possible.
The argument of Mr. Thakor assumes that the woman should be regarded as a proposita independent of her father. But the theory of merger has been recognized by the full bench in Tukaram's case according to which 'the father is brought in as taking the place which the husband would have taken, if the marriage had been in one of the approved or principal forms.' The rule of merger must prevail as against the normal rule of propinquity which would be applicable only on the assumption that the woman is an independent proposita who she is not.
18. Of course in default of the sapindas of the father the blood relations of the woman herself treating her as the stock of descent would come in. That is the rule according to the Mitakshara see Kanakammal v. Ananthamathi Ammal I.L.R. (1912) Mad. 293 and it would be the same in the case of succession according to the Mayukha. As regards the precedence of female heirs to males in the same degree our Courts have restricted the application of the rule to the particular species of property to which female offspring are expressly named in the text as the rightful successors. The general rule of Hindu law according to which males are preferred to females has been always given effect to in regard to other kinds of property see Manilal Rewadat v. Bai Rewa I.L.R. (1892) 17 Bom. 758.
19. The conclusion that must emerge in my opinion from the above discussion is that the sister should be postponed to the brother's son in such a case. Accordingly the plaintiffs would be preferentially entitled to the estate of Bai Manek if her marriage was in an unapproved form. But as we hold that the marriage has not been proved to be in an unapproved form the plaintiffs must fail.
20. Therefore the lower Court's decree must be set aside, this appeal allowed and the plaintiffs' suit dismissed with costs throughout.
21. I agree that this appeal must be allowed and the suit be dismissed with costs throughout upon the merits. The question of law which was raised does not properly survive in view of our finding that the marriage is not proved to have been in an unapproved form; and since it involves question of considerable difficulty and a decision on it is not necessary for the determination of this case, I prefer to express no opinion upon it.