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Ramji Motichand Vs. Naranji Purshottam Sangani - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number O.C.J. Suit No. 1259 of 1931
Judge
Reported inAIR1935Bom268; (1935)37BOMLR261; 157Ind.Cas.127
AppellantRamji Motichand
RespondentNaranji Purshottam Sangani
Excerpt:
caste - excommunication from caste-ruins of natural justice-meeting of caste- procedure at meeting-notice to members of caste of meeting and of business to be transacted-evidence before caste meeting-decision by caste-court, interference of, with such decision.;to justify an excommunication from a caste there must be a caste offence, the rules of procedure of the caste (if any) must be complied with, notice of the charge and of the meeting at which it is to be dealt with must be given to the person accused and full opportunity afforded to him of defending himself, and notice must be given to the members of the caste meeting and of what is intended to be dealt with at the meeting.;appaya v. padappa (1898) i.l.r. 23 bom. 122, krishnasami v. virasami (1886) i.l.r. 10 mad. 133, the advocate.....blackwell, j.1. the plaintiff is a member of the dasa sorathia bania caste in bombay. he prays in this suit for a declaration that his excommunication from the caste is void. his main contentions are that the proceedings which resulted in his excommunication were contrary to natural justice in that the procedure laid down by the rules of the caste was not followed, that he committed no caste offence, that he received no notice of the charge or of the punishment proposed to be inflicted, that he received no notice of the caste meeting, that no notice was given to the members of the caste that a charge against the plaintiff which might result in his excommunication was to be dealt with at the meeting, and that there was no evidence before the caste upon which the caste could find him.....
Judgment:

Blackwell, J.

1. The plaintiff is a member of the Dasa Sorathia Bania caste in Bombay. He prays in this suit for a declaration that his excommunication from the caste is void. His main contentions are that the proceedings which resulted in his excommunication were contrary to natural justice in that the procedure laid down by the rules of the caste was not followed, that he committed no caste offence, that he received no notice of the charge or of the punishment proposed to be inflicted, that he received no notice of the caste meeting, that no notice was given to the members of the caste that a charge against the plaintiff which might result in his excommunication was to be dealt with at the meeting, and that there was no evidence before the caste upon which the caste could find him guilty.

2. In order that the case may be understood, it will here be convenient to refer to some of the more material facts. One Sha. Bhurabhai Nathoo died several years ago leaving two sons Amratlal and Amichand, and five daughters, the eldest of whom is the wife of the plaintiff, and the youngest of whom is named Shanta. The said Shanta was on March 2, 1930, betrothed to Vanmali Kurji. As no marriage resulted from that betrothal, Vanmali's brother Lakhmichand Kurji on November 23, 1930, addressed a letter which with several other documents hereafter referred to was put in as exhibit A collectively, to Sheth Vrajlal Bechardas, defendant No. 2, as manager of the caste in Bombay. Defendant No. 2 and defendant No. 3, who is now dead, were at that time joint managers of the caste in Bombay. In the letter, Lakhmichand complained that although the marriage was fixed for the previous month of Vaishakh, it was put off on one pretext or another, that he was referred by Shanta's brothers Amratlal and Amichand and by her mother to the plaintiff, and that, on asking him about the date of the marriage, an evasive reply was given, and the plaintiff began to act impudently and to talk in an insulting manner, and Lakhmichand requested the manager to call a caste meeting and give him proper justice. It will thus be seen that as early as November, 1930, Lakhmichand asserted that Shanta's mother referred him to her son-in-law, the plaintiff, and that when marriage was suggested, the plaintiff evaded the matter.

3. After this it appears that attempts were made to arrange the matter amicably. As these failed, defendants Nos. 2 and 3 as managers of the caste addressed a letter dated March 24, 1931, to Shanta's father (who was already dead) and her brothers Amratlal and Amichand, referring to Lakhmichand's letter of November 23, 1930, and informing them that as long as the meeting of the community was not called, they were not to make any movement in connection with the matter, and that if they did so, they would be liable to the community.

4. On April 16, 1931, the managers sent a notice, exhibit A, to Amratlal and Amichand informing them that Lakhmichand's petition would be heard at a meeting of the community to be held on April 17 next, and requesting them to be present. A similar notice was addressed to Lakhmichand Kurji, exhibit A. By a printed handbill or circular the members of the caste were informed that a general meeting would be held at 9 o'clock on Friday, April 17, 1931, at Hirabag, the agenda being stated to be : (1) In the matter of an application against Sha. Pitamber Valji, (2) In the matter of an application against Amratlal, son of Sha. Bhurabhai Nathoo Wadiyawala and Amichand Bhurabhai, (3) To discuss matters other than these which the managers may place before the meeting. It is to be observed that the nature of the applications in matters (1) and (2) is not specified.

5. A meeting of the caste was held on April 17, 1931, which the plaintiff attended. As appears from the minutes of that meeting, exhibit A, a committee of seven persons was appointed to investigate the matter raised in Lakhmichand's petition, and to submit a report to the caste. It also appears from the minutes that the respondents to the petition having applied for a copy thereof, the caste resolved that the joint managers should give them a copy of that petition. As the language adopted by the caste in connection with excommunication is of importance in this case, it may be observed that in connection with the first resolution before the meeting relating to Pitamber Valji, who pleaded guilty to the offence of marrying his daughter to a member belonging to another caste, the caste resolved that :

Communal intercourse with him and his family is altogether stopped.

6. By a letter dated April 19, 1931, exhibit A, notice was given to Amratlal and Amichand that the Committee would meet at 8-30 p.m. on Tuesday, April 21, 1931, and they were requested to be present at that time with their proofs.

7. By a letter dated April 20, 1931, exhibit A, Messrs. Purnanand & Jasubhai, attorneys for Amratlal, replied to the notice of the 19th instant, and alleged that the meeting of the caste held on April 17, 1931, was not properly convened, that the Committee was not properly and validly appointed, and that their client was advised not to attend before the Committee.

8. On April 24, 1931, Messrs. Purnanand & Jasubhai addressed to Amratlal Amerchand Madhavji, the President of the caste, a letter, exhibit A, in which they alleged that Shanta had been induced to become betrothed to Vanmali by fraud, in that Vanmali was an old man unphysically suited for marriage, and his brother named Tribhowan, who was already married, had been passed off as if he were Vanmali at the time of the betrothal, and complaining that Lakhmichand, with the help of defendant No, 2, who was alleged to be his relative, had got an alleged meeting of the caste convened to consider Lakhmichand's complaint, that the resolution passed appointing the Committee was in disregard of all rules and resolutions of the caste, that Amratlal had refused to appear before the Committee, and requesting the President and through him the other members of the caste not to interfere in the matter of the betrothal. A copy of this letter was sent to defendants Nos. 2 and 3 by Messrs. Purnanand & Jasubhai under cover of a letter dated April 24, 1931, exhibit A.

9. Information that a public meeting of the caste would be held at Hirabag on April 25, 1931, at 9 p.m. was conveyed to the members of the caste by a printed circular, exhibit A. The business referred to in the circular was (1) The rest of the business of the last meeting which has been left remaining, and (2) To give consideration to the Committee appointed upon the petition of Sha. Lakhmichand Koorji Aniarwalla and to the notice issued to the said Committee by the solicitor for the defendant Sha. Amratlal Bhurabhai. It is to be observed that the circular does not mention the nature of the business which the Committee had been appointed to investigate.

10. The plaintiff admittedly attended the meeting of April 25, but there is a controversy as to what took place at the meeting. According to the plaintiff, as soon as the reading of the report of the Committee was begun, certain members of the caste requested that the solicitors' correspondence, above referred to, should be read, that the Committee said that it was not .necessary to read out the correspondence, that there was then an exchange of words between the members of the Committee and other members of the caste, and from words the matter went to blows, and the meeting broke up in disorder, and the plaintiff left. According to the evidence of the defendants, the report of the Committee was read, and afterwards a member of the caste named Lakhmichand Jhaverchand made a speech informing the meeting that the plaintiff was arranging to get his sister-in-law Shanta married to Girdharlal, and another member of the caste Pitamber Vithaldas was about to address the meeting when the plaintiff created a row, and the plaintiff and one Devchand Tricumji then left the meeting. Whichever of these two versions is right, the plaintiff left the meeting, and did not know what took place subsequently or what resolutions were passed thereat. The minutes of the meeting of April 25, 1931, were put in as exhibit No. 3. They state that the Committee had submitted to the caste its report (see exhibit No. 2), and that after giving consideration to the matter, and after giving opportunity to all persons to speak in favour of and against the report, the caste considered the betrothal of Vanmali Kurji with Bai Shanta after giving opportunity to all persons to speak in favour and against the other meeting within eight days to advance whatever arguments he might have to submit for his sister Shanta. The minutes state that the caste also directed the bridegroom party to be present, and stated that the next meeting of the caste would be held on May 2, 1931, that information would be given to the whole caste and both the parties through the caste priest, and that the caste directed both the parties not to take any steps until the next meeting of the caste.

11. The genuineness of these minutes was attacked,-the suggestion being that they had been written out after the meeting of May 2 on which day they purport to have been signed by defendant No. 1, who was chairman of the meeting of May 2, 1931, below the signature of Popatlal Prabhudas who was chairman of the meeting of April 25, The ground upon which their genuineness was challenged was that defendant No. 1's signature was written over a date which appeared to have been in part erased, and that the sheet upon which these minutes were written had been gummed into the minute book. I do not think that there is anything in this suggestion. Subsequent documents, which I will mention later, refer to the passing on April 25, 1931, of a resolution to hold a meeting on May 2, 1931, and as regards the minute book itself, it has obviously been rebound, and there are various other pages where gumming of a similar character appears to have taken place.

12. The report of the Committee, exhibit No. 2, sets out the evidence before the Committee and contains many references to the plaintiff. According to the evidence, the plaintiff took considerable part in connection with the betrothal, and when the question of marriage arose, insulted the persons who were deputed by Lakhmichand Kurji to see the plaintiff upon the matter, including, among others, Lakhmichand Jhaverchand. According to the evidence of the defendants, the whole of this report was read at the meeting of April 25 while the plaintiff was still present, and he gathered from that report at that meeting that his conduct was called in question as having placed obstacles in the way of the marriage. According to the plaintiff he did not hear the whole of that report read.

14. 13. It will be seen from the minutes of the meeting of April 25, 1931, exhibit No. 3, that the only matter to be dealt with at the next meeting of May 2 was the question of the betrothal of Vanmali Kurji with Bai Shanta. There is no suggestion in those minutes that the conduct of the plaintiff was to be considered at the next meeting. According to the defendants' evidence, one Tarachand Jasraj requested the caste at the meeting of April 25 not to pass any resolution in regard to the plaintiff stating that if eight days' time were given, he would induce the plaintiff and Amratlal not to offer any further objections to Shanta's marriage with Vanmali Kurji, and for that reason no resolution affecting the plaintiff was passed. Be that as it may, no resolution affecting the plaintiff was in fact passed, and on the face of the minutes, the betrothal alone was to come up for consideration at the next meeting to be held on May 2.

15. Shanta was married to Girdharlal on April 28, 1931, at Ghatkoper. According to the evidence of the plaintiff and his witnesses, he was not present at that marriage. According to the evidence of the priest Badrichand Chhogalal, the plaintiff was present at the marriage. It is, in my opinion, unnecessary to determine whether the plaintiff was present or not, because at the time when the material resolutions were passed by the caste, it had apparently not been ascertained whether he was present at that marriage or not, and there was no evidence upon that subject before the caste apart from a statement alleged to have been made by Lakhmichand Kurji at the caste meeting of May 2, which statement, for reasons which I will give later, I do not believe was made at all.

16. Vanmali Kurji addressed a letter dated May 1,1931, exhibit No. 4, to the joint managers of the caste, which was received by them on the morning of May 2 at 10-30 a.m. That letter refers to the circumstances which led to the appointment of the Committee and to the meeting of April 25, in reference to which it says :-

Therein discussion as regards my betrothal took place and the caste unanimously decided that the betrothal had duly taken place and in spite of this, one more opportunity is to be given to the bride's party to enable them to have their say,' It is to be observed that there is no suggestion in this letter that at the meeting of April 25 the plaintiff's conduct in reference to the matter had in any way been called in question. The letter then continues :-Owing to my ill luck Sha Amritlal and Amichand Bhurabhai and her (bride's) mother taking undue advantage of the above opportunity got Shanta in spite of her being Saveli to be married, two or three days ago at Ghatkoper to Girdhar Ladhabhai.

The letter then continues :-

Trambia Ramji Motichand of Bagsara the brother-in-law (i.e. sister's husband) of Amritlal Bhurabhai and Devehand Tricumji of Bhader were the persons who had taken a prominent part at the time of my betrothal and in my opinion these people 'have taken a prominent part even in the movement for the prevention of my marriage and even at the caste meeting they treated the caste with contempt, sent a notice to the caste and treated the caste to be unlawful. In spite of this, the caste has shown its generosity and has given an opportunity again to the brothers of the bride to be heard. I therefore pray that a condign punishment may be meted out to the offenders who despite what is stated above treated the caste to be of no account, caused the Saveli bride to be given away in marriage, and who sided, and speedy justice may be done to me, and my ornaments, monies, clothes, etc., may also be directed to be returned to me.

It is to be observed that though Vanmali here expresses as his opinion that the plaintiff among others had taken part in preventing his marriage, he states no facts in support of that opinion.

17. The managers of the caste sent a letter dated May 1, 1931, exhibit A, to Amratlal and Amichand informing them that pursuant to the resolution passed by the caste on April 25, 1931, a general meeting of the caste would be held at 9 p.m. on May 2 to hear their explanation in connection with the betrothal of their sister Shanta. Notice of that meeting likewise dated May 1, 1931, exhibit A, was also sent to Lakhmichand Kurji.

18. It is in dispute whether the plaintiff received notice of the meeting of May 2, 1931, or not. It is admitted that no circular was sent to the members of the caste in reference to that meeting, though circulars were sent for the meetings of April 17 and 25, and May 12, 1931. According to the evidence of the defendants, it is left to the discretion of the managers as to whether notice of a meeting shall be given by a circular or by the Gor (priest) orally. According to the plaintiff, he received no notice of that meeting. According to Gor Manishanker Shivshanker, he went to the plaintiff's residence on May 1, 1931, between 1 and 2 p.m. and told the plaintiff that a meeting would be held the next day, whereupon the plaintiff asked him for what purpose the meeting was to be held, and the priest told him that the meeting of the caste was being convened in connection with the marriage of his sister-in-law, who had already been betrothed. On the evidence I hold that the plaintiff was given notice that a meeting of the caste was to be held on May 2, but it is plain and is admitted on behalf of the defendants that he was not told that his conduct in connection with the marriage was to be brought up for consideration at that meeting.

19. The plaintiff did not attend the caste meeting of May 2. The proceedings thereat are recorded in the minutes, exhibit 5. The first resolution passed thereat is one of excommunication of Sha. Bhurabhai's widow (Shanta's mother) and her brothers Amritlal and Amichand and Girdharlal. The material part of the resolution is in these terms :-

So the whole caste unanimously resolves to-day as follows :-They having clearly violated the limits imposed by the caste are established offenders against the caste. The caste therefore to-day stop communal intercourse with the aforesaid Sha. Bhurabhai Nathu's widow, and his sons of Vadia, and Zaveri Girdharlal Ladhabhai of Samaedi.

The second resolution relates to the plaintiff, and the material portion of it is in these terms :-

Amritlal Bhurabhai and Amichand Bhurabhai of Vadia married their sister in spite of her standing betrothal with a third party. In that matter the caste believes that commencing from betrothal right up to the end (i.e. marriage) Trambia Ramji Motichand of Bagsara and Devchand Tricumji of Bander husbands of the sisters of the aforesaid two brothers abetted in the commission of the offence. So communal intercourse with the aforesaid two abettors is stopped. Should, however, they two want to defend themselves in this matter, a committee is appointed consisting of the following seven persons.

The names of the Committee are then set out. The resolution then continues :-

They should appear before the aforesaid Committee when desired by the Committee by 10-5-1931, and give an explanation. After hearing such explanation the Committee may give effect to or suspend the said resolution as it may deem proper. Should, however, both the aforesaid offenders in spite of a written notice fail to appear before the Committee to offer an explanation, then the caste gives authority to the Joint Managers to give effect to the resolutions.

20. It is important to bear in mind the words in this resolution, namely, ' the caste believes ',-having regard to the contention, to which I shall refer later, that there was no evidence before the caste at this meeting of May 2 which justified the caste in passing this resolution against the plaintiff. According to the evidence of the defendants, Vanmali Kurji was asked at the meeting of May 2 what his proofs were in support of his opinion that the plaintiff and Devchand Tricumji had taken a prominent part in the movement for the prevention of his marriage, and thereupon Lakhmichand Kurji at the meeting wrote at the foot of Vanmali Kurji's letter dated May 1, 1931, exhibit No. 4, the following words :-

I according to the best of my belief state before the caste that Ramji Motichand and Devchand Tricumji are involved from the beginning to the end in the Saveli bride of my brother being 0 loss to him.

It is to be observed that this amounts to no more than a further expression of opinion, and that no facts of any kind are stated in support of that opinion.

21. It is contended on behalf of the defendants that this resolution was not a resolution of excommunication, but merely amounted to a resolution for the appointment of a Committee to hear the plaintiff's explanation, if any, with authority to the Committee to excommunicate the plaintiff. But the words used ' communal intercourse with the aforesaid two abettors is stopped ' are similar to the words used in connection with the excommunication of the other persons in resolution 1, and similar to the words used in connection with the excommunication of Pitamber Valji in the resolution passed at the caste meeting of April 17, 1931, previously referred to. If this was not a resolution of excommunication, it is difficult to see how the Committee could have been authorised to ' give effect to or suspend the said resolution as it may deem proper,' It was strenuously contended on behalf of the defendants that this was not a resolution of excommunication and the reason for this contention appears to me to be that they were compelled to admit that the plaintiff had been given no notice that his conduct would be called in question at this meeting. It was further resolved at the meeting of May 2 as follows :-

Information of Resolutions I and II about the offenders of the caste should be given to all the members of the caste in Bombay through the priest and to the Mahajans at upcountry places in writing by (handbills). And no member of the caste shall have communal intercourse with the aforesaid offenders. Should however any one in violation of the rule of the caste do so, he will be duly punishable.

It is clear from this resolution that the second resolution above referred to was treated by the caste meeting itself as a resolution of excommunication. According to the evidence of the defendants, information about the plaintiff was not in fact conveyed to the members of the caste, who were not present at the meeting of May 2, until after the meeting of May 12. In my opinion, however, this is immaterial. Further, according to the evidence of the defendants, it would have been open to any member of the caste between the meeting of May 2 and the passing of the resolution at the caste meeting of May 12 to dine with and have social intercourse with the plaintiff. This evidence I do not believe.

22. The minutes, exhibit 5, contain a note to the effect that the petitioners Lakhmichand Kurji and Vanmali Kurji applied for a copy of the papers relating to the proceedings and of the rules and regulations of the caste, and the caste granted their application and informed them that they should go to the managers and make copies. This was relied upon by the defendants as indicating that any application for copy or copies of caste proceedings must be made to the caste itself.

23. The minutes, exhibit 5, also contain a note of the evidence given by Sha, Manilal Jechand in reference to Devchand Tricumji. The only importance of observing this is that when it is considered necessary to record evidence in the minutes relating to any particular matter, it is so recorded. This being so, it seems strange that the minutes of the meeting of April 25, exhibit No. 3, contain no reference at all to the speech alleged to have been made thereat by Lakhmichand Jhaverchand in reference to the plaintiff's conduct or to the alleged offer made by Tarachand Jasraj, if eight days' time were given, to prevail upon the plaintiff and Amratlal to desist from opposing the marriage.

24. Amratlal addressed a letter to the Joint Managers of the caste dated May 2, 1931, exhibit A, which according to an endorsement thereon was received by them on the morning of May 2 at 10-30 a.m., in reply to their letter of the 1st instant, informing them that their sister Shanta was already married to-Girdharlal on April 28, 1931.

25. The Joint Managers of the caste addressed a letter dated May 4, 1931,. exhibit A, to the plaintiff, which runs as follows :-

To wit: In pursuance of the resolution passed by the caste on the date 2-5-31,. you are to be informed by this letter as follows :-On receipt of information that you are a party from the beginning in getting Shanta, the betrothed daughter of Shah Bhurabhai Nathoo, married (to another party), the caste has found you guilty. Still, however, the caste has shown generosity (towards you) and has given you an opportunity to defend (yourself) in connection with this guilt. Hence, in order to hear your 'khulasa' (i.e. explanation), in connection therewith, the caste has appointed a committee consisting of seven gentlemen. The meeting of the said committee will be held at 9 o'clock S.T., at night on Tuesday the date 5-5-31 at Sheth Vrajlal Bechardas's house, in Gulal Wadi. You are informed hereby in pursuance of the order of the caste to remain present at that time.

The phraseology of this letter, ' the caste has found you guilty ' is certainly curious, if as now contended by the defendants the resolution of May 2 was not in fact a resolution of excommunication.

26. The plaintiff's solicitors Messrs. Purnanand & Jasubhai sent a reply dated May 5, 1931, exhibit A. The letter begins by alleging that the plaintiff did not know of any meeting of the caste held on May 2, and that he was never informed that a meeting of the caste was to be held on May 2. In the witness-box the plaintiff admitted that he had on May 3, 1931, heard that he had been excommunicated at a meeting of the caste held on the 2nd. The letter next alleged that the plaintiff denied that Shanta was betrothed to any one before her marriage, and that even if she was betrothed, the plaintiff did not know of the same. The plaintiff admitted in the witness-box that this was untrue, and that he knew of Shanta's betrothal within two or three days of the betrothal having been made. The letter then continues as follows:-

'Our client emphatically denies that he had any hand in the marriage of the said Bai Shanta. Our client has taken no part whatsoever in the marriage of the said Bai Shanta. He was not even present at the time of the marriage.

The caste has no right to hold him liable without calling upon him to attend the meeting of the caste and to give his explanation. It appears from your letter that the caste held him liable without asking him either to attend the meeting or informing him that a meeting of the caste was going to be held on 2-5-1931. The meeting of the caste had therefore no right to appoint a committee and the meeting was not validly held.

The appointment of the committee is therefore illegal and void.

It also appears from your letter that you and the Committee on whose behalf the letter appears to have been written have already made up your mind to hold our client liable,

Lastly the fact that the letter was delivered to our client on the 4th instant at 4-15 p. m., and you ask him to attend at 9 p.m. speaks for itself.

In order to enable our client to consider his position in the matter, it is absolutely necessary that a copy of the resolution of the alleged meeting of the caste should be furnished to us on behalf of our client, and we shall therefore thank you to furnish the same to us.

No copy of the resolution asked for in this letter was supplied to the plaintiff. The explanation of the defendants is that an application should have been made to a caste meeting. It is, however, to be observed that the letter was addressed to the Managers of the caste, and it seems to me that the least they could have done was to inform the plaintiff's attorneys that if a copy of the resolution was desired, the proper procedure was to make an application to a caste meeting.

27. The plaintiff did not attend the meeting of the Committee. The minutes of that meeting held on May 5 are contained in exhibit 6. The Committee resolved that ' the managers should enforce the resolution passed by the community.' This refers to the resolution passed on May 2. The minutes then proceeded as follows :-

But at the same time if on considering the circumstances, they (i.e. the two brothers), perhaps proceed further and take steps in a Court of law, then as the community has not sanctioned the costs to be incurred by the members of the committee in making their defence against them, the committee resolves that the meeting of the community be called and this fact be placed before the same. And the community might, after thorough consideration, give their sanction, if it deems proper, in the matter of putting the resolution into force and in the matter of (incurring) expenses. And it is resolved that a meeting be called on Sunday the date the 10-5-31.

By reason of the fact that the Committee decided to lay the matter before a caste meeting, it has been contended on behalf of the defendants that though the minutes earlier state that it was resolved to enforce the resolution, the Committee did not in fact do so, and that there was no resolution of excommunication in truth and in fact enforced till after the meeting of May 12. I do not agree with this contention. In my opinion, the resolution 'passed at the meeting of May 2 was a resolution of excommunication. If it had not been, the managers could not have been empowered to enforce or suspend it,-as in fact they were. I think that the Committee by their resolution did enforce the resolution, but in view of the fact that legal action might be taken by the plaintiff and Devchand Tricumji, and no provision had been made for costs, which might be incurred by the Committee in defending themselves, they decided to call a caste meeting, which could then have dealt with the resolution as it pleased.

28. As it was found impracticable to obtain a hall for the caste meeting on May 10, it was decided to call the meeting on May 12. Accordingly, a printed circular was sent out informing the members of the caste that a meeting would be held on May 12, at which all the caste brethren were requested to attend. The business referred to in that circular was as follows :-

(1) Submission of the Report of the Committee appointed by the caste on the date 2-5-31 and solicitors' notice received from Ramji Motichand and Devchand Tricumji.

(2) Election of the Managing Committee.

It is to be observed that there is no indication on this circular as to what the report of the Committee was about or as to the nature of the solicitors' notice received from the plaintiff. This is important, seeing that any member of the caste, who had not been present at the meeting of May 2 could not possibly tell from this circular what the real nature of the business to be transacted at the meeting was, or that the plaintiff's conduct was to be called in question and that he might be excommunicated. It is also to be observed that the second item of business related to the election of the Managing Committee. This is not without significance, having regard to a contention made on behalf of the plaintiff, to which I shall later refer, that the whole procedure adopted in relation to his excommunication was invalid, in that any charge against him ought under the rules of the caste to have been considered in the first instance by a Managing Committee, and that no Managing Committee had in fact existed for years.

29. The joint managers of the caste sent a letter to the plaintiff dated May 10, 1931, exhibit A, enclosing a copy of the above-mentioned circular, exhibit A, and requesting him to be present at the meeting of the caste.

30. The plaintiff's attorneys sent to the joint managers of the caste a letter dated May 11, 1931, the material part of which is as follows :-

Our client notes that as requested in our letter to you of the 5th instant, you have not furnished to him a copy of the resolution referred to in our said letter. We are further instructed to note that you have also failed to furnish to our client a copy of the Report of the alleged Committee of the caste appointed by the alleged meeting of the caste held on 2-5-31, and have otherwise acted in a manner which would deny to our client the right to disprove the charges falsely and maliciously made against him.

We are instructed to state that under the circumstances our client cannot usefully attend the meeting, he has been called upon to attend. We are however instructed to write that if the meeting of the caste passes any resolution against our client, the same will be improper or invalid, and will not bind our client, and that our client will hold you and other members of the caste responsible for the same. Without prejudice to his strict rights, however, our client is prepared to attend a properly convened meeting of the caste or a proper Committee duly appointed, provided the resolution excommunicating our client already passed ex parte, is set aside and provided all matters are considered justly and impartially.

The caste appear to have treated the plaintiff's refusal to attend the meeting of the Committee and the meeting of May 12 as a defiance of the caste upon his part. But it is to be noted that the plaintiff did in this letter offer to attend a properly convened meeting or a duly appointed committee provided that the resolution of excommunication was withdrawn.

31. The plaintiff did not attend the meeting of the caste held on May 12. The proceedings at that meeting are set out in the minutes, exhibit No. 7. The first resolution was in the following terms :-

The girl betrothed to Sha. Vanmali Kurji having been married in spite of her standing betrothal with him and Sha. Vanmali Kurji having stated to the caste that Sha. 'Ramji Motichand arid Devchand Tricumji were abettors from the very beginning in the matter, the caste in its public meeting held on 2-5-31 considered the matter and resolved to stop communal intercourse with both of them. The caste 'however appointed a committee of seven persons and gave both of them an opportunity of submitting before it their defence if any in the matter of this offence. They however did not appear before the Committee and on the contrary sent notices through solicitors alleging that the caste and the committee were illegal. In spite of that the Committee adjourned the matter till today's meeting and gave the said two persons a notice in writing calling upon them to attend today's meeting and give an explanation. They however did not attend the meeting and Sha. Ramji Motichand gave a notice through solicitors. Under these circumstances the caste owing to their insulting conduct holds them to be real offenders and unanimously resolves today as follows :-The caste confirmed today the resolution dated 2-5-31 stopping communal intercourse with them and directs the joint managers to give immediate effect to the said Resolution. It further resolves as follows :-Should any steps be taken on behalf of the offenders against the caste or (any) responsible members of the caste, then the Managers are authorised to incur expenses out of the caste fund for defence.

With regard to this resolution, it is to be observed that no evidence was called before this meeting in reference to the charge against the plaintiff, and that the meeting merely acted upon what had taken place previously and ' confirmed today the Resolution dated 2-5-31, stopping communal intercourse with them.' It has been contended on behalf of the defendants that this Resolution passed on May 12 was the first effective resolution, of excommunication. If this be so, it is difficult to see why the word 'confirmed' was used. Moreover, if this resolution passed on May 12 was in itself a resolution of excommunication passed for the first time, there was certainly no evidence adduced before that caste meeting in reference to the charge against the plaintiff, and no proper materials upon which the resolution could have been passed. The contention on behalf of the plaintiff is that the resolution was in truth and in fact what it purports to be, namely, a resolution confirming the resolution passed at the meeting of May 2, and that inasmuch as that resolution was void, having been passed at a meeting at which he was not present, and in respect of which he had admittedly received no notice of any charge, this subsequent resolution was also bad. In my opinion, this was merely a confirming resolution, and the plaintiff's contention is right.

32. The second resolution passed provided that no member of the caste should have communal intercourse with the plaintiff and Devchand Tricumji, and a Committee was appointed to keep a perpetual watch.

33. Next it appears from the minutes that the evidence of the priest Manishanker Shivshanker was taken to the effect that notice of the meeting for May 2 was given to the whole caste through the priest, and that he Manishanker Shivshanker personally went to the plaintiff and Devchand Tricumji and gave them notice of the meeting in accordance with the Rules. The recording of this evidence again shows that it appears to be the practice in matters of importance to record the evidence given before the caste meeting.

34. Thereafter a printed circular, exhibit A, was sent out to all the members of the caste in Bombay and upcountry relating to the excommunication of Pitamber Valji, Bhurabhai Nathoo's widow, Amratlal and Amichand, Girdharlal and the plaintiff and Devchand Tricumji. The minutes of all the material meetings are referred to in that circular but not the minutes of the meeting of April 25, 1931, exhibit No. 3. It has been contended on behalf of the plaintiff that the omission from this circular of any reference to those minutes throws a doubt upon the genuineness of the minutes. I do not think that there is anything in this point. No resolution of excommunication was passed at the meeting of April 25, and it will be seen from the concluding words of the circular that a hope is expressed that the person to whom it is sent 'will take the trouble to see that the aforesaid minutes are given effect to in your village and also in the neighbouring villages.' As there was nothing' to give effect to in the minutes of April 25, 1931, exhibit No. 3, it was, in my opinion, clearly unnecessary to set those minutes in this circular.

35. The plaint in this suit was filed on July 13, 1931. It sets out the more material matters hereinbefore mentioned, and it is unnecessary to refer to it in detail. But I think it necessary briefly to refer to such parts of the plaint and written statement as contain the rival contentions of the parties as defined in the pleadings.

36. Paragraph 7 of the plaint gives the plaintiff's version of what took place-at the meeting of April 25, namely, that :-

Several members of the said caste raised doubt whether the said Bai Shanta was betrothed to the said Vanmali Kurji at all. As there was a free fight between some members of the caste, the plaintiff left the meeting. The defendants have suppressed the minutes of the said meeting.

There is not a word in paragraph 7 of the written statement suggesting that any speeches were made attacking the plaintiff, or that the conduct of the plaintiff was considered at the meeting. It is alleged in this paragraph that the meeting accepted the Report of the Committee that Shanta was properly betrothed to Vanmali Kurji, and resolved that if the brothers of Shanta desired to make any defence, they were at liberty to do so at the next meeting which was fixed for May 2, 1931.

37. In paragraph 8 of the plaint it is alleged that the plaintiff took no part in Shanta's marriage, and did not render assistance to any of the parties connected with the said marriage. In paragraph 8 of the written statement the defendants say that Shanta was married to Girdharlal in breach of the betrothal with Vanmali Kurji, and that the plaintiff took an active part in bringing-about the marriage of Shanta with Girdharlal, and rendered all assistance there-in, It is not alleged in this paragraph that the plaintiff was present at the marriage. In paragraph 9 of the plaint it is alleged that on May 3, 1931, the plaintiff came to know that the defendants held a meeting of the caste on May 2, 1931, and purported to pass a resolution to excommunicate among others the plaintiff on the ground that the plaintiff had assisted in the marriage, and that the plaintiff subsequently learnt that at the said meeting it was resolved to appoint a committee to hear the defence of the plaintiff and others who were excommunicated. In paragraph 9 of the written statement the defendants say that since April 25, 1931, the plaintiff was aware that the next meeting was fixed for May 2, 1931, and that the plaintiff was informed through the Gor of the caste, which is the usual method of giving intimation of caste meetings, that a caste meeting would be held on May 2. There is no denial in this paragraph of the allegation made in paragraph 9 of the plaint that the caste had on May 2 purported to pass a resolution to excommunicate the plaintiff.

38. Paragraph 10 of the plaint begins with an allegation that all the three meetings (i. e. of April 17 and 25 and May 2) were not properly convened as they were not called by the President of the caste. This allegation was abandoned at the trial. The paragraph then states :-

The plaintiff further says that no notice was given to him of the said meeting of May 2^ nor any complaint made against him with regard to the said marriage. The plaintiff further says that the charge brought against him of having assisted at the said marriage was false and malicious and that the defendants acted maliciously in getting the said caste to excommunicate the plaintiff. The plaintiff further says that the action of the said caste in excommunicating the plaintiff without giving him any notice or without hearing him was against the rules of natural justice.

39. The material part of paragraph 10 of the written statement is as follows :-

The defendants deny that the plaintiff had no notice of the meeting of May 2. The defendants further deny that the plaintiff had no notice of the complaint made against him. The defendants deny that the charge brought against him of having assisted the marriage of the said Shanta was false or malicious. The defendants deny that they got the caste to excommunicate the plaintiff. The defendants say that the caste passed the said resolution as they were entitled to do. The defendants deny that they acted maliciously in the matter. The defendants further deny the rest of the allegations made in the said paragraph. The defendants further say that as a matter of fact the plaintiff was aware on May 3 on his own allegation that if he had any explanation to give, the caste had appointed a Committee to hear him on their behalf.

At the hearing, Mr. M. V. Desai for the plaintiff conceded for the purposes of this suit only that the defendants did not act maliciously as alleged in paragraph 10 of the plaint. It is important to observe that the plaintiff alleged that the charge against him was that of assisting at the marriage, and that this is not denied, and it is clear that this was the only charge. This is material upon the question whether any caste offence was in fact committed even if the plaintiff did assist the marriage. .Further, paragraph 10 of the plaint refers to excommunication of the plaintiff at the meeting of May 2, and it is not suggested in paragraph 10 of the written statement that the resolution passed was not one of excommunication. Paragraph 11 of the plaint refers to the letters of May 4 and 5, and to the fact that in the letter of May 5, the plaintiff called upon defendants Nos. 2 and 3 to supply him with a copy of the resolution passed at the meeting of May 2. Paragraph 11 of the written statement admits the correspondence, and says that the plaintiff challenged the jurisdiction of the caste and the Committee, and the Committee desired that the matter should be placed before the meeting of the caste for May 12, It is further alleged that if the plaintiff required copies of the minutes of the caste meeting, he should have applied to the caste according to custom.

40. Paragraph 13 of the plaint refers to the letter of May 10, and the circular for the meeting of May 12, and the plaintiff's solicitors' letter of May 11. It also refers to the fact that the plaintiff had expressed his willingness to attend a meeting of the caste if properly convened or to appear before a Committee duly appointed by the caste if the ex parte excommunication made on May 2 was -rescinded. Paragraph 13 of the written statement admits the correspondence, and says that as the plaintiff took up a defiant attitude, and failed to attend the meeting of the caste, and made unjustifiable conditions, the caste proceeded with the matter on May 12, and passed a resolution excommunicating the plaintiff. In reference to this, it is to be observed that according to the minutes of the meeting of May 12, exhibit 7, the caste 'confirmed' the resolution passed at the meeting of May 2.

41. Paragraph 14 of the plaint states that it appears that a meeting of the caste was held on May 12, 1931, and decided that the plaintiff insulted the caste by sending a solicitors' letter, and confirmed the resolution alleged to have been passed on May 2, 1931. In paragraph 14 of the written statement the defendants say that the plaintiff having aided in giving Shanta in marriage to Girdharilal in breach of the betrothal, and on the other grounds mentioned in the resolution, confirmed the resolution passed on May 2. As to this, it is to be observed from the record of the minutes of the meeting, exhibit 7, that the other grounds here referred to appear to be the failure of the plaintiff to attend the meeting and give an explanation, and the sending of a notice through the solicitors, which the caste regarded as insulting conduct, in consequence of which the caste held the plaintiff to be a real offender.

42. Paragraph 15 of the plaint sets out the plaintiff's contentions in regard to the meeting of May 12, and is as follows :-

The plaintiff says that the said meeting was also not convened duly according to the practice of the said caste and was illegal. The plaintiff further says that neither the defendants nor any one on behalf of the said caste furnished the plaintiff with a copy of the specific complaints made against the plaintiff or with a copy of the resolution alleged to have been passed at the said meeting on May 2, 1931, nor a copy of the report of the said committee. The plaintiff further says that the 'defendants failed and neglected to comply with the reasonable demands made by the plaintiff by his said letter. The plaintiff further says that the circular convening a meeting of the caste on May 12, 1931, was misleading. The plaintiff says that the conduct of the said caste in confirming the resolution of May 2, 1931, was against the rules of natural justice.

43. These allegations are dealt with in paragraph 15 of the written statement, which is as follows :-

With reference to paragraph 15 of the plaint, the defendants deny that the meeting of May 12 was not properly convened. The plaintiff was well aware of the practice of the caste that copies of the resolutions of the caste or a committee thereof can only be obtained by an application made at the caste meeting. The plaintiff was well aware that it was not within the powers of the managers to furnish copies of these resolutions. The plaintiff was well aware of the charge made against him. The defendants say that the proceedings of the meeting of May 12 were regular. The defendants deny each and all the allegations made in paragraph 15 of the plaint.

44. Paragraph 16 of the plaint refers to the issue of a circular intimating to all the members of the caste the resolutions passed. In paragraph 16 of the written statement these allegations are admitted to be substantially correct, and the defendants say that the action was within their power and jurisdiction.

45. Paragraph 17 of the plaint is as follows :-

The plaintiff says that an order of excommunication passed by the said caste was not bona fide and that no proper enquiry was made into the betrothal of the said Bai Shanta with the said Vanmali Kurji or into the part taken by the plaintiff in the marriage of the said Bai Shanta with the said Girdharlal Ladhabhai Javeri.

46. These allegations are denied in paragraph 17 of the written statement.

47. Paragraph 18 of the plaint contains an allegation of malice, which is no longer material.

48. In paragraph 19 of the plaint, the plaintiff says :-

The plaintiff further says that the said caste acted against the rules of natural justice, that the meetings of the caste at which the plaintiff was excommunicated were not regularly convened and duly notified to the plaintiff. The plaintiff says that the said order of excommunication was not in accordance with caste usage and rules, and was not in respect of any offence against any usage or rule of the said caste.

This is dealt with in paragraph 19 of the written statement as follows :-

With reference to paragraph 19 of the plaint, the defendants deny that the caste acted against the rules of natural justice or that the meetings of the caste material to this case were not properly convened. The defendants further deny that the order of excommunication is not in accordance with the caste usage or rules or that the same was not in respect of any offence against the caste usage or rules. The defendants say that by usage of the caste, no betrothal could be broken or marriage solemnized in contravention thereof without the sanction of the caste.

49. I will now deal with the question whether the caste followed the proper procedure in reference to the plaintiff. The rules of the Bombay caste were put in as exhibit B. They were passed as long ago as October 17, 1901, at a meeting of the caste. Rule 1 is in the following terms :-

For conducting the affairs of the caste in accordance with the rules made by the caste a managing committee of the below-mentioned twenty-one gentlemen is appointed. Their names are as given below.

The names are then set out. The rule then continues :-

The abovementioned twenty-one gentlemen will conduct the affairs of the caste in accordance with the rules made by the caste and as regards ordinary matters relating to the caste which may come up before them they are to consider the same and are to do proper justice according to the opinion of the majority and as regards extraordinary matters involving (disputes relating to boys and girls, excommunication, imposition of fine upon any one, and similar important matters) which may come up the Committee will after considering all such complaints place them before the caste.

50. Having regard to this rule, it has been contended for the plaintiff that before the caste could pass any resolution against the plaintiff, relating to his alleged conduct in reference to the girl Shanta, the question ought to have been considered by the Managing Committee, and that as this was not done, the whole procedure adopted from beginning to end is bad. It has, on the other hand, been contended for the defendants that the words 'after considering all such complaints' in the rule do not involve any inquiry and report, but merely require the Committee to consider the complaint with a view to determine whether it is an ordinary matter which they can deal with themselves or whether it is an extraordinary matter which they would be bound to place before the caste. In my opinion, this is not a correct interpretation of this rule. I think that the intention of the rule was that the Committee should investigate the matter after giving proper notice to the person involved of the charge against him, and full opportunity of making his defence, and that the Committee should then place the matter before the caste with their recommendation. It is obviously a very difficult matter for a large caste meeting to hear detailed evidence and investigate a complaint, and I think that this rule was intended to provide that in the first instance the duty of investigation should be undertaken by the Committee. I was referred to a judgment of the .Appeal Court in Ratansey v. Meghji : AIR1934Bom431 , where the Appeal Court held that as the Mahajan entered into the enquiry in the first instance, although the rule of the caste required an enquiry by a Committee, the excommunication of the plaintiff was invalid. In that case the rule in question was as follows :-

If it is found that any member or family of the Mahajan has committed any offence whatever with reference to the community, then such member or family will be called before the meeting of the Managing Committee for inquiry, and if the aforesaid Committee finds anyone guilty after giving him full opportunity to defend himself and after fully considering every matter, then proper punishment will be meted out to him with the consent of the Mahajan.

That rule was of course expressed in different terms from the present rule, and contains the words 'for inquiry'. But in my opinion the rule in the present case, though differently expressed, was passed with the same object and intention, and as the procedure therein indicated has not been followed, the plaintiff is, in my opinion, entitled to say that he has not been properly excommunicated,-even if the excommunication could stand upon other grounds. The defendants have submitted that this rule is a dead letter, inasmuch as no Managing Committee has been in existence for a large number of years. But sub-rule (6) of rule 1 provides for an election of members to the Committee of twenty-one being held every year ; and if the caste have failed to carry out their own rules by electing the Committee, they cannot, in my opinion, say that their failure to follow their own rules justifies them in adopting another procedure in defiance of that laid down.

51. The next question is : was the offence with which the plaintiff was charged, namely, aiding and abetting Shanta's marriage, a caste offence The allegation as to usage is contained in para. 19 of the written statement as follows :-

The defendants say that by usage of the caste no betrothal could be broken or marriage solemnized in contravention thereof without the sanction of the caste.

Aiding and abetting a marriage is not mentioned. Defendant No. 1 in his evidence gave only one instance of excommunication for aiding and abetting the marriage of a Saveli girl, and then admitted that he had no personal knowledge of that case. The other witnesses called by the defendants merely expressed their opinion that aiding and abetting a marriage was a caste offence, but they gave no instances. The existence of such a usage was not put to the plaintiff in cross-examination. On the evidence I find that it is not established that by the usage of the caste aiding and abetting the marriage of a Saveli girl is a caste offence.

52. The defendants in this connection relied upon rule 37 of the Bombay Rules, exhibit B, to which I will now refer. It is in these terms :-

The caste will hear the disputes relating to girls raised by members of the community residing in Bombay, If the person to whom the boy belongs or the person to whom the girl belongs be a resident of the place (Bombay), then the 'dispute raised by him will be heard by the caste ; but if any one comes here from an upcountry place and raises a dispute of that nature before the caste, then the dispute raised by such a person will be heard by the caste of the place of which he is an inhabitant and no member of the community here shall accept or give (in marriage) such girl about whom there is a dispute. Notwithstanding this, if any member of the community does a cowardly act like (that of accepting or giving) a Saveli girl, he will be held to be guilty in the eyes of the community.

The rule deals with accepting or giving a Saveli girl in marriage. That is not the same thing as aiding and abetting. It is contended for the defendants that any one connected with the girl who takes part in accepting or giving the girl is covered by the rule. But the rule does not say so, and in my opinion so to hold would be stretching the rule beyond its natural meaning. The function of giving a girl at a Hindu marriage is ordinarily performed by the father and mother or in their absence by some agnate relation. It was not put to the plaintiff that he gave the girl in marriage. What was put to him was that he took part in bringing about the marriage, and that he was present at the marriage, and sent for the priest, all of which the plaintiff denied. The witnesses Motichand Panachand, Shantilal Kanji, and Lalji Purshottam all said that Shanta's brother Amratlal gave away the bride, and their evidence on this point was not challenged. Defendants' witness, the priest Badrichand, did not say who gave the bride away. The charge being one of aiding and abetting, rule 37 of the Bombay Rules does not, in my opinion, assist the defendants in establishing that there was a caste offence.

53. The defendants also relied upon certain rules passed at a Conference of the whole caste held at Bagsara in 1923, to which Bombay sent delegates. The plaintiff was one of the delegates to that Conference from Bagsara. He said that owing to the death of his son, he did not attend the proceedings, and was not aware of the rules which were passed, but there is overwhelming evidence that he did attend the Conference, and I do not believe the plaintiff on this point. The plaintiff said that the Bagsara rules were not binding upon the caste in any particular place, unless the rules were adopted at a meeting of the caste at the particular place, and that as they had not been adopted (as is the fact) by the Bombay caste, they were not in force in Bombay. The evidence of the defendants' witnesses is that the delegates had authority to assent to rules which would be binding everywhere, and that they were binding, and a print of the rules was sent out after the conference to all places where the caste at the particular place, and that as they had not been adopted (as defendants were unable to give primary evidence of these rules, but I was satisfied that they had made out a proper case for secondary evidence, and I allowed secondary evidence of the Bagsara rules to be given. Rule 70, exhibit 17, is in these terms :-

Enforcement of the rules :-These rules are to be treated as coming in force from the date on which a printed copy of this book is received by the Mahajan (association) of every village. These rules shall not affect the betrothals made prior to that, date ; but on all occasions (concerning betrothals) subsequent to such (betrothals) these rules shall have to be observed.

It is established in evidence that a printed copy of these rules was received in Bombay.

54. The material rule in connection with aiding and abetting is rule 62, exhibit 16, which is as follows :-

Of late, in our caste painful incidents of giving away the 'Saveli' (betrothed girl) (elsewhere) go on multiplying. In order that the sanctity and solidarity of the caste may be preserved, it is laid down that no one shall give or take a 'Saveli' (betrothed girl) within or outside the community. He who takes or gives-(such a one) or aids in such (act) or takes any part therein, he shall have to abide by the decision of the Taluka Mahajan, whatever it be.

Exception :-If the physical or mental condition of the bridegroom is bad or if his whereabouts are not known for a long time, or if he be greatly addicted to vices, and the parents or the guardian of the bride are not willing to marry the girl (with him), then that betrothal can be cancelled with the sanction of the Taluka Mahajan.Note :-It is left to the discretion of the Taluka Mahajan of each division as to what period constitutes a long period.

It is in controversy whether the latter part of that rule is applicable to Bombay, in that it provides for the decision of the 'Taluka Mahajan.' The expression 'Taluka Mahajan' is defined in rule 2 (exhibit G, coll.) as follows :-

Wherever the expression ' Taluka Mahajan' occurs in this regulation, the expression 'Taluka Mahajan' should be taken to mean the Taluka Mahajans of those Talukas which were functioning under the regulation of the S. Y. 1946 (1889-90 A.D.) and still function under the regulation of the S. Y. 1969' (1912-13 A.D.).

It is conceded that Bombay was not one of those Taluka Mahajans, which are all in Kathiawar. 'Sthanik Mahajan' is defined in rule 3, (exhibit G,, coll.) as follows :-

'Sthanik Mahajan' (Local Mahajan). Wherever the expression 'Sthanik Mahajan' occurs in this regulation, the said expression 'Sthanik Mahajan' should be taken to mean the Mahajan of that village which has got five or more houses (families') of the community.

Note :-Villages having less than five houses (families) directly come under the Taluka.

I am satisfied on the evidence that Bombay is a Sthanik Mahajan. It is. contended for the defendants that rule 62 is intended to provide for the decision of the Taluka Mahajan if the question arises in a Taluka Mahajan, and that if it arises in a Sthanik Mahajan, the decision must be that of the: Sthanik Mahajan. The rule, however, does not say so. It is said that rule 70 deals with the enforcement of the rules, and that that must mean all the rules. But rule 70 cannot make a rule applicable to place A, if on the face of it the rule is applicable only to place B. Under rule 37 of the Bombay Rules aiding and abetting is not an offence. In a matter which is so serious as to involve excommunication, I do not think that the Court should hold that one of the Bagsara rules applies to Bombay unless it is clear upon the face of it beyond dispute that it does apply. In my opinion, rule 62 is certainly not clear in this respect, and I hold that it is not established that it applies to Bombay. The result is that in my view the defendants have not proved that aiding and abetting the marriage of a Saveli girl was a caste offence in Bombay.

55. A great many authorities have been cited relating to enquiries into caste offences and to expulsion from clubs. They establish that there must be a caste offence, that the rules of procedure of the caste (if any) must be complied with, that notice of the charge and of the meeting; at which it is to be dealt with must be given to the person accused, and full opportunity afforded to him of defending himself, and that notice must be given to the members of the caste of the meeting and of what is intended to be dealt with at the meeting : see Appaya v. Padappa I.L.R(1898) 23 Bom. 122, Krishnasami v. Virasami I.L.R(1886) Mad. 133. The Advocate General of Bombay v. David Ha'im Devaker I.L.R(1886) . 11 Bom. 185, Jagannath Churn v. Akali Dassia I.L.R(1893) Cal. 463, as regards caste meetings and caste offences, and Labouchere v. Earl of Wharncliffe (1879) 13 Ch. D. 346, Young v. Ladies' Imperial Club [1920] 2 K. B. 523, as regards clubs, and Maclean v. The Workers' Union [1929] 1 Ch. 602, a trade union case where many of the English authorities relating to domestic tribunals are reviewed. The requirements of natural justice must be complied with. If they have, a Court of law will not act as a Court of Appeal in reference to a decision of a domestic tribunal.

56. I have already held that what the plaintiff was charged with was not a caste offence, and that the caste did not follow its own rules of procedure. Lest I should be wrong in my view of those matters, I will now consider whether the caste otherwise acted in accordance with the principles laid down in the abovementioned authorities, and in accordance with the principles of natural justice.

57. As regards notice of the meeting of May 2, I accept the evidence of the Gor that he gave notice to the plaintiff, and I disbelieve the plaintiff on this point.

58. As regards notice of the charge, it is conceded that no notice was given to the plaintiff before the meeting of May 2. It is contended that the plaintiff must have known from what happened at the meeting of April 25 that his alleged conduct in urging Girdharlal to marry Shanta had been called into question. But the plaintiff denies that anything of the kind took place at that meeting while he was present. Assuming that it did, it does not, in my opinion, assist the defendants. It was not decided at the meeting of April 25 to prefer a charge against the plaintiff at the next meeting, and the plaintiff did not know that, a charge was going to be made against him at that meeting. Accordingly, in my opinion, the resolution passed against the plaintiff at the meeting of May 2 was bad on that ground alone.

59. I think that the resolution was also bad upon the ground that no notice was given to the members of the caste that a charge was going to be made against the plaintiff at the meeting of May 2. There was no printed circular issued in respect of that meeting, and there is no evidence that the members of the caste were informed that a charge was going to be made against the plaintiff. It is contended for the defendants that the same strictness ought not to be applied to caste meetings as to clubs, that this is a small caste, and that I ought to assume that all the members of the caste knew about the breach of betrothal, and the plaintiff's alleged conduct in connection therewith, But even those members of the caste who attended the meeting of April 25 did not know that a charge was to be made against the plaintiff at the meeting of May 2, and there may have been many members of the caste who did not attend the meeting of April 25. In my opinion, notice that a charge of aiding and abetting the marriage was to be brought against the plaintiff at the meeting of May 2 ought to have been given to all the members of the caste.

60. If I am right in my view that the resolution passed against the plaintiff on May 2 was a resolution of excommunication, and that that resolution was bad for the reasons which I have given, then it seems to me to follow that the plaintiff was entitled to refuse to attend before the Committee and at the meeting of May 12. Lest I should be wrong in that view, I will next consider whether the subsequent proceedings were in accordance with natural justice.

61. I think that the letter from the joint managers to the plaintiff dated May 4 was a sufficient notice to the plaintiff of the charge against him. The plaintiff admitted that he received that letter at about 4 or 4-15 p.m. on May 4, and that there was ample time for him to attend the meeting of the Committee if he had wished to do so, and that he did not want an adjournment. He said that he consulted his solicitors, and was advised not to attend the Committee meeting. He also said that although he was given an opportunity to offer any explanation or defend himself at the caste meeting of May 12, he did not attend that meeting on the advice of his solicitors. He admitted that by that time he knew perfectly well that his offence, according to the caste, was that he had taken part in bringing about the marriage of Shanta with Girdharlal. According to the plaintiff, he knew that for the first time when he received the letter of May 4. Although he did not receive a copy of the resolution passed on May 2, and a copy of the Committee's report, he could have attended the caste meeting on May 12 if he had wished to do so, have asked for a copy of those documents, and applied for an adjournment.

62. But, although by this time the plaintiff had notice of the charge against him, 1 think that the notice which convened the caste meeting of May 12 was defective. The business specified was 'submission of the report of the Committee appointed by the caste on the date 2-5-31, and solicitors' notice received from Ramji Motichand and Devchand Tricumji.' That notice certainly did not convey to the caste members what the charge against the plaintiff was, or that if found guilty, he might be excommunicated. In Young v. Ladies' Imperial Club [1920] 2 K. B. 523 the Committee of the Club were authorised by the rules to suspend a member from the use of the Club and to recommend her to resign, and if she did not do so within a certain time, to erase her name from the list of members, but it was provided that no member could be so suspended or recommended to resign unless a resolution to that effect should have been passed by a certain majority of the members of the Committee actually present at a meeting specially convened for the purpose, The notice convening the meeting of the Committee stated that the object of the meeting was 'to report on and discuss the matter concerning (the plaintiff) and Mrs. L.' Warrington L. J. expressed the opinion that the notice was not sufficient. It has been contended for the defendants that by this time every member of the caste must have heard all about the charge against the plaintiff, and that the notice would be sufficient to convey to them that the meeting was to consider the charge against him. But when the conduct of a member of the caste is impugned, and the punishment may be excommunication, I think that the question of notice ought not to be left in doubt, and that there ought to be evidence that all the members of the caste received proper notice of the charge and of the proposed punishment. As the notice for the meeting of May 12 was, in my opinion, insufficient, I hold that the resolution passed thereat was invalid.

63. There remains to consider the question whether there was any evidence before the caste upon which they could find the plaintiff guilty, and whether, if there was no evidence, the Court will interfere. I think that the authorities establish that the domestic tribunal must act as reasonable men, and not capriciously ; there must be some evidence upon which they come to their decision ; if there is none, they cannot be said to have acted in good faith, and the Court will interfere : see Manekji v. Municipal Commissioner of Bombay (1929) 32 Bom. L.R. 463. The Queen v. Owen (1850) 15 Q. B. 476, Osgood v. Nelson (1872) L.R. 5 H. L. 636, Allinson v. General Council of Medical Education and Registration [1894] 1 Q. B. 750, and Leeson v. General Council of Medical Education and Registration (1889) 43 Ch. D. 366. I do not think that it is necessary that there should be before a domestic tribunal evidence of the character which would be required in a Court of law. In Thompson v. British Medical Association (N. S. W. Branch) [1924] A. C. 764 Lord Atkinson in delivering the judgment of the Board at p. 778 spoke of 'legal evidence, given in the course of the proceedings adequate to sustain it,' but these remarks were obiter. In Maclean v. The Workers' Union [1929] 1 Ch. 602, Maugham J. at pp. 621-622 dealt with the question whether a decision could be attacked upon the ground that there is no evidence upon which the tribunal could possibly come to its conclusion, and referred with approval to the views expressed by Cotton and Bowen L. JJ., in Lesson's case, and quoted Bowen L. J., as saying (inter alia) (p. 384) :-

If, indeed, it could be shewn that nothing was brought before the tribunal which could raise in the minds of honest persons the inference that infamous conduct had been established, that would go to shew that the inquiry had not been a due inquiry ; but if there is no blot of that kind upon the proceedings, the jurisdiction of the domestic tribunal which has been clothed by the Legislature with the duty of discipline in respect of a great profession must be left untouched by Courts of Law.

I think that a duty is cast upon the Court to see whether there was any evidence upon which the domestic tribunal could act. I, therefore, propose briefly to consider the question.

64. As regards the caste meeting of April 25, defendant No. 1 stated that he addressed the meeting and said that on the second day of the meeting held by the Committee, namely, on April 22, Lakhmichand Jayerchand had appeared before the Committee and stated that he had been to Girdharlal's place at about 9 p.m. on that day accompanied by Pitamber Vithaldas, Mohanlal Jadavji, and Goculdas Narandas, and had heard the plaintiff saying to Girdharlal that he should marry his sister-in-law Shanta, and should fix the date and place for marriage, and advised him that it was no use delaying the matter. According to defendant No. 1, Lakhmichand Jhaverchand and Pitamber Vithaldas also addressed the meeting, and the plaintiff and Devchand Tricumji tried to break up the meeting, but failed, and left the meeting, and that when the meeting was about to pass a resolution about the plaintiff, Tarachand Jasraj said that he would prevail upon the plaintiff and Amratlal not to break off Shanta's betrothal, and not to get her married to some one else in breach of the betrothal, if a week's time was given to him, and upon that it was decided that the name of the plaintiff and of Devchand Tricumji should not be included in the resolution, and that a resolution should be passed only with reference to Amratlal and Amichand. According to Jhaverchand Lakhmichand, he informed the meeting that the plaintiff was arranging to get his sister-in-law Shanta married to Girdharlal, and he urged that the caste should take steps in the matter. According to Pitamber Vithaldas, he began to address the meeting, and when he had touched the point of the solicitors' notice having been sent, arid remarked that that action was illegal, the plaintiff created a row and stopped him from speaking further.

65. The evidence given by Lakhmichand Jhaverchand as to having heard the plaintiff requesting Girdharlal to marry Shanta on April 22 is of a very curious character. He said that Mohanlal Jadavji was with him, and he heard this conversation through the door of Girdharlal's room, which was ajar, that he knocked at the door, and the plaintiff came out, whereupon he told the plaintiff that it did not befit him to get his sister-in-law Shanta married to Girdharlal in breach of the betrothal already made with Vanmali, and the plaintiff said nothing and left; and after that he went into the room, told Girdharlal that Pitamber Vithaldas and Goculdas Narandas were downstairs, and they were then sent for and came to Girdharlal's room, and then in their presence, he told Girdharlal that it was not befitting him to marry a girl, who had already been betrothed to Vanmali Kurji. According to Pitamber Vithaldas, he went with the others upon this occasion, and he and Goculdas Narandas remained downstairs, and he had no conversation with the plaintiff at all, though they saw the plaintiff going downstairs. Neither Mohanlal Jadavji nor Goculdas Narandas were called to give evidence.

66. The story of the overhearing of this alleged conversation between the plaintiff and Girdharlal through a door which was ajar strikes me as very improbable. It has been entirely denied by the plaintiff. I do not believe the story. If this story is an invention, and I find that it is, the speeches alleged to have been made at the meeting in reference to it could not have been made. I do not believe that those speeches were made, or that there was any evidence before the caste meeting on April 25 that the plaintiff was urging Girdharlal to marry Shanta. I think that if Lakhmichand Jhaverchand had in fact overheard this alleged conversation, and had told the Committee and the caste meeting about it, some reference would have been made to it in the report of the Committee, exhibit 2, and in the minutes of the caste meeting, exhibit 2.

67. The next question arising is whether, even if there was evidence before the meeting of April 25, there was any evidence before the meeting of May 2, at which other members of the caste, who did not attend the meeting of April 25, may have been present. Defendant No. 1 in examination-in-chief said that the letter from Vanmali Kurji, exhibit 4, was read out at the meeting, and as read out, it ended with the signature of Vanmali Kurji. Lakhmichand Kurji then made a statement, which is endorsed at the foot of exhibit 4, and he wrote that statement on exhibit 4 at the meeting. Defendant No. 1 also said that the letter of Amratlal dated May 2, 1931, part of exhibit A, was read out at the meeting, and that after these letters were read, there was a discussion, and then resolutions were passed. He produced the minutes of the meeting, exhibit 5, and stated that they correctly set out the proceedings and resolutions of the meeting. In cross-examination he said that there was evidence at the meeting about the plaintiff having been present at the marriage. According to him, Lakhmichand Kurji stated that the plaintiff was present at the marriage, and when asked to produce proof in support of that statement, he said he would produce the proof, and thereupon he gave a writing on the complaint. He further said that the caste did not ask Lakhmichand Kurji as to who told him that the plaintiff was present at the marriage, and that it was on that statement made by Lakhmichand Kurji that the resolution No. 2 relating to the plaintiff was passed. This witness then gave the reasons for which, according to him, the resolution concerning the plaintiff was passed on May 2. They were as follows :-

(1) From the complaint dated the 23rd of November 1930, part of exhibit A, received by us, and which was read out at the meeting of the 17th of April, we learnt that the plaintiff had been taking an active part in breaking off Shanta's betrothal, and even at the meeting of the 17th of April itself, the plaintiff took up that attitude.

(2) Thereafter it was the plaintiff, who took the leading part in getting the notices, (which were sent by the solicitors of Amratlal), served on the Manager of the Caste.

(To the Court).

I was not present when instructions for serving those notices were given, but the Manager told me that the plaintiff had taken that active part. The second defendant, the Manager, told me that the plaintiff had come to him for a copy of the resolution, and that the plaintiff had come to serve the notices on behalf of Amratlal and Amichand in reply to the Summons which we had issued asking them to appear before the Committee.

(To Mr. Desai).

(3)The plaintiff twice requested me to exert my influence with the caste to sanction the breaking off the betrothal.

(4) Lakhmichand Jhaverchand made a statement before us in the Committee, to which I have already referred.

(5) From the attitude which the plaintiff adopted at the meeting of the 25th of April 1931 we learnt that he had been instrumental in breaking off the betrothal, and in bringing about the marriage. These are all the reasons.

It will be observed that the only reasons relating definitely to the marriage are (4) and (5), reason (4) refers to the statement alleged to have been made by Lakhmichand Jhaverchand, and reason (5) to the attitude adopted by the plaintiff at the meeting of April 25, 1931, at which the question of betrothal was the only matter being dealt with. As regards Lakhmichand Jhaverchand's alleged statement, if it was made at all, it was not made on personal knowledge, because he was not present at the meeting. I do not believe that that statement was made at this meeting. The alleged statement is not referred to in the minutes, exhibit 5, though the evidence of Manilal Jeychand upon another matter is therein recorded. If Lakhmichand Jhaverchand had really made the statement, in my opinion, it would have been recorded in the minutes.

68. Defendant No. 2 said that after the two letters above referred to were read at the meeting, the caste considered the matters referred to therein. He also said that Lakhmichand Kurji and Vanmali Kurji stated before the caste meeting that the plaintiff and Devchand Tricumji had a hand in getting this Saveli girl Shanta married to some one else, that the caste asked them to furnish proofs, and thereupon Lakhmichand Kurji wrote down the statement at the meeting. In cross-examination he said that after Vanmali Kurji and Lakhmichand Kurji made their statements, some other members of the caste also spoke at the meeting, and then resolution No. 2 was passed. He did not remember what the other people said. Lakhmichand Jhaverchand, Pitamber Vithaldas, and some other persons, whose names he did not remember, spoke at the meeting. He said that he was not mixing up the incidents of April 25 with the incidents of May 2, 1931. The evidence of this witness carries the matter no further than the evidence of defendant No. 1.

69. Lakhmichand Jhaverchand in examination-in-chief merely said that he was present at the meeting of May 2. He was not asked and did not say that he spoke at that meeting. He was asked nothing about the meeting in cross-examination. It would, therefore, seem that defendant No. 2 must have been mistaken when he said that Lakhmichand Jhaverchand spoke at this meeting.

70. Pitamber Vithaldas gave no evidence either in chief or in cross-examination as to having been present at the meeting of May 2. It would seem, therefore, that defendant No. 2 was also mistaken when he said that Pitamber Vithaldas spoke at this meeting.

71. Apart, therefore, from what was endorsed at the foot of exhibit 4, it comes to this, that the only evidence at the meeting of May 2 connecting the plaintiff with the marriage is the statement alleged to have been made by Lakhmichand Kurji that the plaintiff was present at the marriage. If I am right in holding, as I do,-for the reasons already given-that Lakhmichand Kurji never made that statement, then the only evidence was the endorsement on exhibit 4. That merely expresses the belief of Lakhmichand Kurji that Ramji Motichand and Devchand Tricumji were involved from beginning to end in the Saveli bride of his brother being lost to him. It is significant that according to the evidence, Lakhmichand Kurji was asked for his proofs, and that this is all that he said according to the written document. He did not on that mention that the plaintiff was present at the marriage, and his belief is not supported by any allegation of fact. As regards the minutes, exhibit 5, they merely state that 'the caste believes that commencing from betrothal right up to the end (i. e., marriage), Trambia Ramji Motichand of Bagsara and Devchand Tricumji of Bander, husbands of the sisters of the aforesaid two brothers abetted in the commission of the offence.' No facts are mentioned in the minutes in support of the belief, and no evidence is referred to. In my opinion, there was no evidence before the caste meeting on May 2, 1931, which would justify the resolution against the plaintiff, I think that the caste passed that resolution without due inquiry and without ascertaining whether there were any facts in support of their belief.

72. The next question is whether there was any evidence before the meeting of May 12. In his account of what happened at this meeting, defendant No. 1 said nothing as to any evidence having been given against the plaintiff at this meeting. He said that after the report, exhibit 6, was read, there was a discussion, and that after the discussion the caste meeting passed resolutions. He produced the minutes of the meeting, exhibit 7, and stated that they correctly set out the proceedings and resolutions at that meeting. Defendant No 2 in his evidence merely said that the minutes, exhibit 7, correctly set out what happened at the meeting.

73. It is, therefore, plain that no evidence was given of any charge affecting the plaintiff at the meeting of May 12. The minutes themselves, exhibit 7, say that Vanmali Kurji having stated to the caste that the plaintiff and Devchand Tricumji were abettors from the very beginning, the caste in its public meeting held on May 2 considered the matter and resolved to stop communal intercourse with both of them. This is, therefore, a reference to statements made at the meeting of May 2 and not to any evidence given at the meeting of May 12. The minutes go on to refer to the failure of the plaintiff and Devchand Tricumji to attend before the Committee, and to the plaintiff having given a notice through his solicitors. Then the minutes say :-

Under these circumstances, the caste owing to their insulting conduct holds them to be real offenders unanimously resolves today as follows :-The caste confirmed today the Resolution dated the 2-5-31, stopping communal intercourse with them and directs the Joint Managers to give immediate effect to the said Resolution.

It is, therefore, plain from the minutes themselves that no evidence was given of any facts in proof of the charge that the plaintiff had aided and abetted the marriage, and that the resolution was passed having regard to what was stated to have happened at the meeting of May 2, and the plaintiff's alleged insulting conduct in sending a solicitors' notice. If the resolution passed at the meeting of May 12 is to be treated as a substantive resolution of excommunication, I hold that there was no evidence given before that caste meeting, which would justify the resolution. If the resolution was a mere confirmation of the resolution passed at the meeting of May 2, as in my view it was, then it was a confirmation of a resolution which, for the reasons I have already given, I hold to have been invalid.

74. [After answering the issues], I pass a decree in favour of the plaintiff and declare that the excommunication of the plaintiff from the caste is void, and that the plaintiff is still a member of the caste, and as such entitled to all the privileges and civil rights in respect of the properties and funds belonging to the caste. I pass an injunction restraining the defendants from preventing the plaintiff from exercising his rights and privileges as a member of the caste with reference to the properties and funds belonging to the caste.

75. As regards costs, Mr. Engineer has referred me to the case of Bhicoobai v. Hariba Raghuji : (1917)19BOMLR650 . Upon the authority of the observations made by Mr. Justice Marten in regard to costs at p. 663, I am satisfied that I can properly direct that the costs of both the plaintiff and the defendants should come out of the caste property. The caste, is before me,-this being a representative suit under Order I, Rule 8, Moreover, by the terms of the resolution passed by the caste on May 12, it was provided that if steps were taken against the caste, the managers were authorised to incur expenses out of the caste funds. Unless I make an appropriate order in this suit, a further suit may be necessary to enable the defendants to reimburse themselves. This being the position, counsel have agreed on an order in regard to costs which I make by consent, namely, that the plaintiff's costs between party and party are to be paid by the defendants and or are to come out of the caste property, and after payment of the plaintiff's costs or after the defendants have set apart a sum of Rs. 25,000 with Messrs. Haridas & Co., their attorneys, on account of the plaintiff's costs, the defendants' costs of the suit between attorney and client and the costs which they may pay to the plaintiff are to come out of the caste property,-Messrs. Haridas & Co. undertaking not to claim any lien on the said sum of Rs. 25,000.


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