1. This is an appeal from the decree of the Temporary Subordinate Judge of Masulipatam, dismissing the plaintiff's suit for the declarations that the adoption of the 3rd defendant by defendants 1 and 2 is not true in fact and valid in law and that he, the plaintiff, is the next reversioner to the zamindari and is entitled to succeed to it, on the 1st defendant's death and that the alienation by her to defendants 4 and 5 are not binding on him. The Subordinate Judge found the adoption to be proved on evidence and he held it to be valid in law. On that finding plaintiff's suit failed and it was dismissed with costs. The plaintiff appeals.
2. He does not now dispute the fact of the adoption but he contends that it is not valid in law. His argument is that the marriage between defendants 1 and 2 was invalid under the Hindu Law as being a Virudha Sambhandham or a marriage between persons within the prohibited degree of relationship and that they were therefore not legally husband and wife and they could not validly adopt a son to themselves. The 1st defendant was admittedly the 2nd defendant's deceased wife's sister's daughter. It is claimed that she could not therefore have legally married the 2nd defendant. For this contention the appellant's vakil relies on a text in Grihya Parisishta stated to be a work of the sage Aswalayana, and on the observations in Minakshi v. Ramanada I.L.R. (1887) Mad. 49 and 58 adopting the rule stated in the text. The text has been translated by Mr. Ghose in his ' Principles of Hindu Law', 3rd edn. Vol. II, page 830 as follows:
A girl with whom there is no relationship unseemly for marriage should be married. The relationship such as makes the pair like parent and child to each other is relationship, unseemly for marriage, such as the daughter of the wife's sister and the sister of the wife of the paternal uncle. Some exclude the mother's gotra.' That text no doubt treats a marriage like the one we have in the present case to be a Virudha Sambhandha. But the effect of that text has been considered at great length in Raghavendra Rau v. Jayaram Rau 7 M.L.J. 184 and it was held that it was merely hortatory in character and not mandatory. The same view was taken by the Bombay High Court in Ramachandra v. Gopal I.L.R.(1908) 32 Bom. 619 (see pages 630 to 633) which was followed in Yamnava v, Laxman Bhimrao. I.L R(1912) Bom. 538 .
3. The rule is one of those moral precepts the breach of which an orthodox Hindu views with disfavour but which does not affect the legality of the marriage. The marriage is an undesirable one but it is not an illegal one.
4. As the learned Judges in Raghavendra Rau v. Jayarama Rau I.L.R. (1897) Mad. 283 have discussed the question very fully and as we entirely agree with their reasons and their view, it is unnecessary for us to go over the same ground again. That decision is one of special authority because one of the Judges who took part in it was Subramania Ayyar, J. who is himself a Brahmin and was thoroughly conversant with the practice and sentiments of the Brahmin community. The learned Judges after examining a large body of unimpeachable evidence of well known men in this Presidency, came to the conclusion that among Brahmins the custom of allowing a man to marry his wife's sister's daughter was established. They also referred to the observations of the learned Judges in Minakshi v. Ramanada I.L.R.(1887) Mad. 49 regarding the rule of Virudha Sambhandha that we are considering and rightly pointed out that it was rather assumed than decided in that case that the rule was in force. The decision in Raghavendra Rau v. Jayaramu Rau 3 has stood unchallenged now for over 20 years and we think that we should take it as having settled the question in favour of the validity of such a marriage among Brahmins.
5. The learned vakil for the appellant thereupon argued that the decision in that case should not be applied to the present case because that case referred to Tamil Brahmins in the south of the Presidency whereas the present case refers to a Telugu Sudra in the Northern Sircars, the parties being Velamas who are Sudras of a high class. At first sight this distinction seems to be material but on examination it will be found to be unsubstantial. The evidence given of the validity of the marriage in Raghavendra Rao v. Jayaram Rao I.L.R.(1897) Mad.283 included that of such a man as the Hon'ble Mr. N. Subba Rao who is a Telugu Brahmin of the Northern Sircars. The Court made no distinction in its finding between Tamil Brahmins of the south and Telugu Brahmins of the north and there is no reason to suppose that there is any distinction between the two on the point. The ruling therefore we think applies to both Tamil and Telugu Brahmins as it purports to do.
6. But it is no doubt a case relating to Brahmins while the present case relates to Sudras. The distinction however, is not in favour of the applicability of the Grihya Parisishta rule to the latter. The rules in the Parisishta were meant for the twice born classes and for the Brahmins in particular ; they were not meant to apply to Sudras at all. The Velamas no doubt follow Brahmin customs and have copied several of their rules but when the Brahmin custom itself is in favour of the legality of such a marriage as we are dealing with, there is no room for assuming that the contrary rule prevails among the Velamas. At any rate very little evidence is sufficient to justify the conclusion that the same custom as prevails among Brahmins is followed by them. There is evidence in the present case as pointed out by the Subordinate Judge to show that such a marriage is valid among them, see D. W. No. 2 and D. W. No. 3 and D. W. No. 23. Instances among allied castes have also been referred to by several defence witnesses and though that evidence may have no direct bearing on the question of custom among Velamas it probabilises the existence of a similar custom among them.
7. As against that evidence our attention was drawn to the evidence of P. Ws. 2, 3, 5, 6, 7, and 31. The effect of the evidence of the plaintiff's witnesses is we think correclty summed up by the Subordinate Judge when he says that they say that to their knowledge there were no instances of a person marrying his wife's sister's daughter and that there was no such usage so far as they knew. The positive evidence of defence witnesses 2, 3 and 23 which has been accepted by the trial judge and which we see no reason to discredit though they are not men of wealth as some of the plaintiff's witnesses are, we think, outweighs the somewhat negative evidence of the plaintiff's witnesses. Such a marriage though 'legal is apparently not one looked on with much favour and that probably explains why there are so few instances of it in the caste. But the paucity of instances does not detract from the value of those that have been proved.
8. It is for the plaintiff to establish his plea that the rule of prohibition relied on by him applies to the 1st defendant's marriage and renders it invalid. The Griya Parisishta rule on the point is not observed even by the Brahmins. In itself it has no binding force particularly on the Sudras. It is only if the rule has been shown to have been adopted as a binding custom by the defendant's caste that we can give it any legal effect. Thearg ument that there is a presumption that the caste custom is in accordance with the precepts of the sages than against them is of no force in this case, as the custom regarding this marriage was established to be otherwise by Raghavendra Rao v. Jayarama Rao I.L.R (1897) Mad. 283 with reference to Brahmins whose ways these Velamas copy. We agree with the Subordinate Judge that the plaintiff has failed to establish that there is any rule of law or caste custom against the validity of the 1st defendant's marriage with the 2nd defendant and that on the other hand the defence evidence shows that it is in accordance with the recgnised practice in the caste.
9. It is conceded that in the Velama caste a man may marry his own sister's daughter as also his wife's own sister. There does not seem to be anything very strange in his being permitted to marry his wife's sister's daughter, The marriage of the defendants took place twenty four years ago and no one seems to have taken any exception to it till now. The defendants had several children born to them but they seem to have lost them all and so they took the 3rd defendant in adoption in 1910. The evidence of defendants 1 and 2 referred to by the Subordinate Judge and Exhibits. II series, III and X to XX (a) show that plaintiff and his family and the defendants were moving on terms of intimacy till recently and that plaintiff took no exception 1o the marriage himself. In these circumstances it is a satisfaction to find that we are not obliged to declare the marriage to be illegal.
10. No other point has been argued before us. Finding that the 1st and 2nd defendants' marriage to be perfectly legal, it follows that the objection to the legality of the 3rd defendant's adoption based solely on its illegality fails. The plaintiff's appeal must therefore be dismissed with costs.