1. When the second appeal was taken up I at first felt a doubt whether a second appeal lay, because the suit is to recover Rs. 270, being the price of jewels belonging to plaintiff's deceased daughter which the plaintiff claims as her heir on the ground that the marriage of the deceased was in the Asura form.
2. The learned vakil for the respondent took up my suggestion and argued the preliminary objection. He relied on Chhedi v. Gulabo ILR (1905) A 622 in support of his objection. This decision no doubt seems to support him. It relies on two earlier decisions in Kapalee Bewah v. Keshram Kooch (1869) 11 WR 93 and in Moheshur Mondul v. Koilash Nath Mandul (1880) 7 CLR 71. I may at once observe that the decision in Moheshur Mondul v. Koilash Nath Mandul (1880) 7 CLR 71 is really irrelevant. For, in that case, the title was established by a prior judgment and the suit was merely for possession of specific moveable property. It is now well established that the question whether a suit lies in the small cause side or on the original jurisdiction depends upon a construction of the plaint only. What the defence of the defendant in his written statement will be or what attitude the defendant assumed with reference to a demand made by the plaintiff prior to suit is really an irrelevant consideration in the determination of this question. Article 28 of the Second Schedule of the Provincial Small Cause Courts Act runs as follows:
(28) A suit for a legacy or for the whole or a share of a residue bequeathed by a testator, or for the whole or a share of the property of an intestate.
3. In the present case it is conceded by the vakils on both sides that the deceased Ankammal had no other property except these jewels. If there had been any other property in the possession of the defendant, the plaintiff would have sued for it. It is obvious that the plaintiff is suing for the whole of the property of her deceased daughter who died intestate. I fail to see why a suit of that kind does not fall under Article 28 simply because the defendant does not set up the plea of a rival claimant. I find some difficulty in accepting the test laid down in Chhedi v. Gulabo ILR (1905) A 622 and in the case in Kapalee Bewah v. Keshram Kooch (1869) 11 WR 93 relied on in it. But, in the present case, even according to the test laid down in Chhedi v. Gulabo ILR (1905) A 622, it seems to me that the suit lies in the original side because the defendant, in his written statement, contends that Krishnamasari, the husband of the deceased, succeeded to her property and that the 2nd defendant succeeded Krishnamasari as his mother. This contention amounts to setting up the plea of a rival claimant. It is true there are other defences also in the written statement, but I do not see how the addition of other defences makes it the less the plea of a rival claimant. For these reasons I think the second appeal lies though I must again add that the second reason (according to which I have to refer to the written statement) is unsatisfactory and I would rather rest my conclusion on a construction of the language of the Article, differing from Chhedi v. Gulabo ILR (1905) A 622 and from Kapalee Bewah v. Keshram Kooch (1869) 11 WR 93. The preliminary objection is, therefore, overruled.
4. Coming to the merits of the case, the evidence in the case and the findings of the Courts below show that, in the community to which the parties belong, namely the community of goldsmiths or Asaris, it is customary for the bridegroom's party to make a payment to the parents of the bride to enable them to meet a substantial part of the expenses of the marriage. It seems to me immaterial whether it is the whole of the expenses of the marriage or a substantial portion of it. To the extent the bride's father gets a contribution of that kind from the bridegroom's father he benefits by it ; though he does not pocket it, he spends for the marriage. It is true that presents made to the bride's parents which are either small or relatively small having regard to the scale on which the rest of the expenses of the marriage are incurred do not necessarily make a marriage an asura marriage. One must really look into the substance of the transaction. In the case in Rev. Gabrielnathaswami v. Valliammai Ammal (1920) MWN 158 there was some obscurity as to the meaning of the word parisu panam.The learned judges who originally heard the second appeal had a suspicion that it might be merely a courtesy present given to the bride's parents and so they called for a finding whether it was regarded as a bride price. Having regard to the ruling in Muthu Aiyar v. Chidambara Aiyar (1893) 3 MLJ 261 and to the statement in Manu, Ch. III, vv. 25 and 52, Ch. IX, vv. 98 and 100, quoted in Mayne's Hindu Law, 9th edn., Article 81, 'Let no father, who knows the law, receive a gratuity however small, for giving his daughter in marriage, since the man who, through avarice, takes a gratuity for that purpose is a seller of his offspring.' I think that a substantial contribution towards the expenses of the marriage must be regarded as equivalent to taking a bride price. The learned vakil for the respondent relied on a remark in my judgment in Ratnathanni v. Somasundara Mudaliar : AIR1921Mad608 . I there said:- 'No special custom among Mudaliars to the effect that the bridegroom should incur the expenses of the marriage has been pleaded.' That remark was made to avoid discussion of that question. It is true in this case a custom has been pleaded and proved and I have to decide whether the existence of such a custom makes any difference in the result. I am of opinion it does not. If there is a general custom of taking contribution from the bridegroom's party among Asaris, it only comes to this that every Asari marriage is an Asura form of marriage and it is not that on the ground of the general prevalence of such a custom, the marriage should be regarded as one in the Brahma form. The decision in Jaikisondas Gopaldas v. Harkisondas Hullochandas and Anr. ILR (1876) B 9 has nothing to do with the point before me. There a present called Palu was made to the bride and not to the bride's relations. I am of opinion that the form of marriage in the case is not Brahma form, but Asura form, and, agreeing with the Courts below, I dismiss the second appeal with costs.