(1) This Second Appeal is filed against the judgment and decree of the Court of the District Judge of Chittoor confirming that of of District Munsif in O. S. No. 569 of 1947, a suit filed by the respondent for a declaration of the titile of the joint family, of which he is the maanger, to the suit properties and for possession.
(2) The plaintiff's casemay be breifly stated. His paternal uncle Chengalraya Reddy purchased the suit properties in the name of his wife Sayamma under a duly registered sale deed dated 27-6-1938 for a sum of Rs.300/-. After he purcahsed, as he settled down in Sumatra Island for the purpose of trade, he entrusted the management of the suit lands to the defendants, who are the brothers and mother of Sayamma. Sayamma and Chengalraya Reddy died in the years 1945 and 1946, childles. At the time of his death, Chengalraya Reddy had two brothers, Veeraswami Reddy and Munuswamy Reddil. Munuswamy Reddi died in 1946 leaving him surviving his only son, the plaintiff. On those allegations, the plaintiff claimed that he and the membersof his joint family including Veeraswami Reddy have become solely entitled to the suit properties. The suit was filed for possession as defendants refused to deliver possession.
(3) Defendants 1 to 3 claimed that the suit property was purcahsed benami in the name of Sayamma for their familky. They stated that they have been in possession in their own right. Even if Sayamma was held to the owner, they pleaded that they would be her heris in preference to the plaintiff.
(4) The learned District Munsif held, on the evidence, that the sale deed dated 27-6-1938 in favour of Sayamma was not benami for defendants 1 to 3. He did not think it was necessary to consider whether the said sale deed was benami for her husband. Chengalraya reddy, as in his view, it did not make any difference in the matter of succession. He found that there was no evidence that the marriage was in Asura form and on that finding, gave a decree to the plaintiff and his family as prayed for. On appeal, the learned District Judge accepted the findings of the trail Court. When it was contended before him that the suit was filed by the plaintiff, as manager of his family and that no decree could be given for, the entire property as Veeraswami Reddy, the owner of the other hair, was not a member of the plaintiff's family, the learned Judge held that the property washeld in co-ownership by the plaintiff's family for which the pllaintiff was the manager and Veeraswami Reddy was a co-owner and, therefore, the suit by one of the co-owners against a trespasser would lie. In the result, he confirmed the decree. Hence the appeal.
(5) Mr. Ramachandra Reddi, learned counsel for the appellants, contended that the property was given to Satyamma as Shulka, that to such property, the defendants have prferential right to succeed to that of the plaintiff and that the burden lies upon the plaintiff to establish that Sayamma's property is not Shulka but her ordinary Stridhana, in which case alone they would be entitled to succeed. It may be pointed out that this question has not been specifically raised in the pleadings. Though in paragraphs 7 and 8 of the written statement it was stated that the position of law stated in paragraph 7 of the plaint was incorrect, and that, even if Sayamma should be deemed to be the real owner, defendants 1 to 3 being the brothers of Sayamma, would be her nearer heirs. That the property was given as Shulka to Sayamma was not raised for the simple reason that the defendants' contentioin throughout was that the purchase was benami for them.
There was a suggestion in the first Court that the marriage was in Asura form. But that was rejected as there was no evidence to that effect. In appeal, the learned Judge said that the plaintiff was a heir to the stridhana property, as there was no evidence to show that it was shulka stridhana. If the defendants intended to set up an alternative plea that the property was given as shulka to Sayamma, they should have set up the plea in more specific terms, so that the plaintiff could have adduced evidence to establish that it was not shulka but only the usual kind of stridhana. The learned District Judge isnot justified in allowing the appellants to raise the plea that the property was given as shulka, for that question could only be decided on fresh evidence adduced.
(6) As the question was argued, I think it is advisable to express my view. The meaning of shulka is gratuity or fees. Trevelyan in his treatise on Hindu Law says at page 436:
'It was originallky paid to the father as the price of the bride, but, when that was forbidden, the father received it for the birde and it became her property as her diwry. According to the 'Virmitrodaya' shulka is what is received by the birde, but, when that was forbidden, the father received it for the bride and it became her property as her dowry. According to the 'Virmitrodaya' shulka is what is received by the bride or a marriied woman as a price is household furniture, conveyance, milch cattle and ornaments.'
In the Mitakshara, it is stated that the fee or shulka is that which, having been taken, the bride is given in marriage. It is clear that, if the view of Virmitrodaya or of Mitakshara be accepted, it partakes of the character of price for the bride, though in the origin, it was paid to the father; subsequently it meant only the fees takes by the father for the benefit of the daughter.
(7) Golapchandra Sirkar Sastri in his book on Hindu Law gives the reason for the different rules of succession in the case of shulka at page 044 as follows:
'The Shulka or bride's price, however, goes to a woman's uterine brother in lplreference to her own issue; but if there be the mother, she is to be preferred to the brother. The reason is that originally it belonged to the parents; but later on, it was decided to become the birde's stridhana; and this rule of succession appears to be a compromise between the origjnal and the later views.'
Dealing with the mode of proof, in such cases the learned author says:
'In order to apply the special rule of succession to 'shulka', 'it must be distinctly alleged and proved by cogent evidence that the property given to a girl was of that character, the gift having been prompted by a desire to confer preliminary benefit, immediate or ultimate, on the parents who have been induced to give her in marriage. In the present advanced stage of society every ante-nuptial settlement or gift cannot be classed as shulka.'
Mayne in his treatise on Hindu Law and Usage, 11th Edition stated the law on the subject at page 743 as follows:
'The shulka in the older sense of bride prices, ultimately received by the bride herself, is obsolute; where it is now paid to the parents or, the brother in the Asura marriage, it does not raise any question of succession to her stridhana. Where it is paid to the bride herself as the price of ornaments or house hold furnishing, or as a complementaryplresent, it would be her ordinary stridhana; for there is no reason why the dowry given to the wife by the husband in modern times, should be treated as attracting a special order of succession, which was applied to some obscure form of the aqcnicent bride price, which really belonged to the father, but which he may have handed back to his daughter.'
(8) Horwill J. in -- 'Surayya v. Balakrishnayya', AIR1941 Mad 618 (A) noticed the difference in the definition of shulka laid down in the Mitakshara and in the Smritichandrika and attempted to reconcile both the definitions. At lpage 619, the learned Judge observed:
'It seems clear that even though we take the definition of shulka given in the Smritchandriaka, we must still read it with the definition given in the Mitakshara and must regard as shulka the classifications given in the Smritichandrika only if there is attached to the gift some idea of a bride price. If the present is given to the girl, or to the father of the girl, for the primary purpose of purchasing a birde or securing the marriage, then it would come within the definition of shulka; but these same classes of gifts, if not tainted with the idea of purchase, being simply gifts to a propsective bride, would not fall within the definition of shulka.'
The learned Judge also quoted the abovesaid passage from Mayne's Hindu Law and approved of it.
(9) It is, therefore, clear that shulka is a gratuity for the receipt of which a girl is given in marriage. Whether the gift was made in the limited sense as defined in the Mitakshara, or in a wider snse, as including gifts of household lfurniture, conveyance, milch cattle and ornaments, as defined in Smritchandrika, in either a case, it shall be a gift to a bride in the nature of a bride's price. But this form of stridhana has become obsolete. In modern society, it is not possible to assume that every gift made to a bride, either before or after the marriage for the aforesaid purpose of shulka, such gifts would be her stridhana property and a party, seeking to divert succession, must set up a definite case and establish by clear evidence that a particular gift is a shulka within the meaning of the text books. In this instant case, as I have already stated the defendants did not specifically plead in the written statement that the property was given to Sayamma as shulka, nor did they adduce any evidence to establish that fact. The lower Court is clearly right in holding that the property is not shulka and, therefore, the plaintiff is the preferential heir to Sayamma.
(10) It is then contended that the learned Judge was wrong in giving a decree to the plaintiff on a basis totally different from that with which he came to Court. It is pointed out that, in the plaint, he plaintiff claimed to be the manager of the joint family and that, in that capacity, he asked for possession, whereas the learned Judge gave the relief on the basis that the plaintiff as manager is a co-owner with Veeraswamy Reddi. In the plaint there are clear allegations that the plaintiff and the members of the joint family including Veeraswami Reddi have only became entitled to the suit property and that the suit was filed on behalf of the entire family. But it has transpired that Veeraswami Reddi had become divided from the plaintiff's father and, therefore, the plaintiff couldnot be the manager of Veeraswami Reddi's branch.
But on the death of Chengalraya Reddi, Veeraswami Reddy and Munuswamy Reddi took his property as co-owners and after the death of Munuswamy Reddy , the plaintiff's family memebrs were co-owners with Veeraswamy Reddi. It is settled view that a co-owner can file a suit for recovery of the property from a trespasser on behalf of all the co-owners. That suit was framed by the plaintiff as manager of his family and it could not have prejudiced the defendants, for, as pointed out, the plaint discloses that the plaintiff's branch as well as Veeraswamy Reddy's branch was entitled to the entire property. Whatever defences the defendants could have raised if the suit was filed on the basis of co-ownership, they could also have been raised in the suit as framed. when the learned Judge rejected the technical pawl, gave a decree, I do not think I am justified in interfering with it.
(11) In the result, the appeal fails and is deismissed with costs. No leave.
(12) Appeal dismissed.