1. The suit is brought by the plaintiff-appellant, to recover the stridhanam, properties left by his wife who died without any issue. They are alleged to have been given to her at the time of marriage before the nuptial fire and during the bridal procession. The plaintiff claims to be the heir as the marriage was in the ''Brahma' form. The 1st defendant, the father and the 2nd defendant, the mother of the deceased, contend that the marriage was in the 'Asura' form, that, therefore, they are the heirs. Besides denying the right of the plaintiff to recover any properties in their possession they advance a counter-claim to recover some jewels of the deceased in the possession of the plaintiff. The learned Judge has held that the marriage' was in the Asura form and dismissed the suit. This is an appeal from that decision. It is not disputed that if the marriage was in the Brahma form, the plaintiff is the heir, and if it is in the Astira' form, one of the defendants and not the plaintiff would be entitled to the stridhanam left by the deceased. The important question, therefore, for consideration is, whether the plaintiff was married to his deceased wife in the Brahma form. The parties are at issue and the evidence is conflicting as to the ceremonies performed at the plaintiff's marriage. It is admitted that on 25th August 1904 took place what appears to be the ceremony of betrothal or Vagdanam, called by the witnesses, Payijdimadupur. On that day some married women of the caste to which the parties belonged proceeded from the bridegroom's house to the house of the bride carrying certain presents consisting of cocoa-nuts, betel and nut, garlands black-beads, saffron, red powder, &c;, in a tray. There were also a pagoda and a fanom in it. The arrangement as to expenses and gifts was formally entered into or announced.
2. According to the plaintiff's evidence his father said he was going to give a hundred pagoda worth of jewels, that is Its. 350 and the father of the bride, the 1st defendant, said he was going to give jewels of the value of not less than Rs. 5,000 and that he was going to give jewels to the bridegroom also. According to the purohit, defence 1st witness, the bridegroom's people promised Rs. 300 worth of property and the bride's people promised Rs. 5,000 worth of property. After this the bride's party said, according to the purohit, 'we give the girl to you' and the bridegroom's people said 'we take her.' Then after certain ceremonies the black-beads were tied round the bride's neck and all the articles in the tray with the exception of the pagoda and fanom were tied in the girl's waist. As to what was done with the pagoda and the fanom there is direct conflict of evidence. According to the plaintiff's evidence this pagoda and fanom were tied in a piece of cloth smeared over with saffron and with the cocoa-nut was placed in the waist cloth of the bride. Some witnesses say it was so tied in the name of Venkateswar, the God of the Tirupathy temple and the pagoda and the fanom were according to custom afterwards sent to the temple. Other witnesses say that no body cares what becomes of it after it is given to the bride. This is intended to rebut the defence evidence that this is the purchase-money, in consideration of which the marriage took place. According to the defendants the pagoda and the fanom were given to the bride's mother, the 2nd defendant. The purohit swears he took them out of the tray and delivered them to the mother himself. According to him 'ancients say this money was given as cooly to the mother for suckling'. The defendants rely upon this to show that this is really the consideration money paid by the bridegroom for the purchase of the bride, or at any rate it represents what of old was really the purchase-money and that the marriage must, therefore, be held to be in the ' Asura' form. Then on the 29th August the marriage ceremonies customary among the class to which the parties belong were performed. As the fact of marriage and its validity in law are admitted, it is not necessary to describe them. There was the gift of the bride decked with jewels admittedly worth more than Rs. 5,000 by the defendants to the plaintiff, bridegroom and there was also Panigrahanom. But according to the purohit and the other defence witnesses, there was no Vivaha Homam, no Sapthapathi. It is not contended that the absence of these ceremonies invalidates the marriage, as it is conceded that these are not customary ceremonies among the community to which the parties belong and that they are not, therefore, performed. But, it is contended, that according to Hindu Law they are essential in the case of Brahma marriage. According to the plaintiff's evidence Homam was performed but it appears to have been Navagraha Homam and not Vivaga homam. We have not been referred to any evidence to show that Sapthapadi formed a part of the marriage ceremony and we must, therefore, accept the evidence of the purohit who is also corroborated by other witnesses that it is not customary among this community to perform Vivaga homam or Sapthapadi and they were not performed in this case. The plaintiff also swears that at the time of the marriage his father told the 1st defendant that only such of the jewels as the latter intended as a gift to the bride should be on her person and that the rest should be removed to which he replied not once but thrice'; that all the jewels that were then on the person of the bride which are worth much more than Rs 5,000 except the head ornaments were intended to be given as a present. This is denied by the defendants ; and though the plaintiff is supported by some witnesses, we are not prepared to accept their testimony which has not been believed by the learned Judge.
3. On behalf of the appellant-plaintiff, it is contended that there is a presumption that a Hindu marriage is not in the Asm a form but Brahma, that the evidence in this case shows that there was no bride price' paid, but that the father gave his daughter to the bridegroom decked with jewels and that the sloka recited at the ceremony also shows that it was a Brahma marriage. On the other hand Mr. Sundra Iyer contends that the Brahma marriage is primarily intended for Brahmins though no doubt the other castes including the Sudns may have adopted it in some instances, that the Balijas or Kavarais, the castes to which the parties belong, perform their marriages in the Asura form, that the admitted fact that they still retain the ceremony of a gift of a pagoda and a fanom shows that the Asura form has not been discarded by them and that the commission of Vivaha homam and Saptapadi shows that even if the marriage is not Asura it cannot be Brahyna.
4. There is no doubt that according to Hindu Law the presumption is in favour of Brahma marriage. The Asura marriage is not approved and is considered a base form of marriage. Though it is allowed in the case of Sudras, Manu says it ought not to be practised even by them. Manu III, 51 and IX, 98. The Courts have, accordingly, held that in the absence of any proof to the contrary the marriage must be presumed to be in one of the approved forms-see Gojabai v. Shahajurao Mahaji Bays Bhosle 17 B.v 114; Jagannath Parsad Gupta v. Runjit Singh 25 C.b 354; Thayammal v. Annamalai Mudeli 19 M.k 35 and as the other approved forms are unusual and it is not stated that the marriage, is in one of those forms, the presumptions is that the marriage is in the Brahma form. But it is clear that the Asura form till recently at any rate was very common in Southern India. See I Strange's Hindu Law page 43, and Leon Sorgn states that the marriage by purchase is the common form among the Tamils and when money is paid to the father of the bride the formula is repeated. ' The money is for you, the girl is for me.' He also states that the Kavarais, to which caste the parties belong, marry according to the Asura form.
5. This, undoubtedly, shows that the presumption of Hindu Law must be applied only with some caution to marriages among these castes. It is not contended that these castes, even if Sudras which is not admitted, are not entitled to marry in the Brahma form. The words in Manu's text to a man learned in the Veda', (Manu III 27), a qualification which, however, is not found in Yajnavalkya, shows no doubt that the marriage was originally intended according to Manu for the Brahmins or the twice born classes. But the other classes must have adopted it in the days of the commentators, as we find Kullakka Bhatta, Sarvagna Narayana, Raghunandana and also others explain this to mean a person who follows the achara' that is the usage of his class. It cannot be denied that any class or person, may marry in the Brahma form and we cannot ignore the tendency shows by the lower castes to imitate the higher castes in their ceremonies and other observances. When, therefore, it is shown that a certain community have been following till recently the Asura form of marriage, it may be that the Court may not be justified in drawing my presumption that they have abandoned that form but we can neither draw any presumption, for these reasons, that the marriage is in the Asura form. The case, therefore, has to be decided upon the evidence given by the parties without the aid of any presumption in favour of either side. The distinctive mark of the Asura marriage in the payment of money for the bride. It is certain that the payment of a pagoda and 2 1/12 annas was not intended as any consideration in this case where the bride's father spent thousands of rupees himself and gave presents of considerable value to the bride and the bridegroom. The payment was not made to the father, the owner in the eye of the Hindu Law of his daughter for transferring his rights over her, but it was made to the mother. The caste tradition according to the purhoit and the defence evidence is, that this amount, fixed by the caste, is paid as Palu Kali-Malik. Cooly this does not support the theory that it is bride price. It looks more like a compliment paid to the mother, even where the father receives from the bridegroom, a cow and a bull and two pairs, it is treated as a marriage arsha in an approved form, as it is not given as the price of the bride. It will be observed that the son of a wife wedded in the first three forms of marriage, the Brahma, Daiva and Prajapatya liberates from sin, ten, seven and six ancestors and descendants respectively. The son of a wife married according to arsha rite liberates only three. It is a distinctive mark of these three forms of marriage that nothing is received by the bride's father and according to Hindu Law, the Brahma form is honorably distinguished as the bride's father gives her decked with jewels or honouring her by presents of jewels. According to some of the commentators of Manu, the father gives present of jewels also to the bridegroom. In this case it is in fact admitted and clearly proved by the evidence on both sides that this was done. The purohit also proves that at the time of the Panigrahanam he recited the sloka which implies that the desire to attain heaven prompted the gift of the virgin with wealth and decked with jewels. This is peculiarly appropriate to Brahma and Daiva forms of marriage. It is repugnant to an Asura Marriage which is condemned and not carried out to attain heaven and where the father does not give wealth or Jewels but the bridegroom pays the bride price. The next contention is that even if it is not proved to be Asura,' the marriage cannot be held to be Brahma on account of the omission of Vivaha Homam, the nuptial fire and the Saptapadi. As already stated it is not contended that this omission renders the marriage invalid in law. It is admitted that the formalities and ceremonies customary in the community to constitute the relation of husband and wife have been complied with and that they constitute a valid marriage and the same evidence that proves that the ceremonies aforesaid were not performed also proves that so far as this caste is concerned they are unnecessary to indicate the intention of the parties to enter into a valid contract of marriage'. Mr. Mayne is of opinion that we have now only Brahma and Asura forms of marriage though he notices a few instances of Gan-dharva also. Mr. Justice Bannerjee observes in his book on Marriage and Stridhanam of the four approved forms of marriage, the Brahma is the only one that now prevails, and all persons, even Sudras, are at the present day held competent to marry in that form. Of the four base forms, the Anira is the one that is now prevalent and is in fact the most common form of marriage and Gandharva marriages also some time take place. The marriage in this case is, of course, not in the Gandharna form and if it is not in the Asura form, if these learned authors are right, it must be a Brahma marriage. Such is also the view of the learned Judges in Sivarainabsalda Pillai v. Bagavan Pillai Madras Suddor Reports of 1859 p. 44.
6. Assuming, however, that there are various forms of marriage now prevalent, does the omission of the Vivaha Honiam and the Saptapadi show that the marriage in. question cannot be in the Brahma or any other approved form. Mr. Sandra Iyer contends that it is not necessary for him to show that the marriage was in the Asura or in an unapproved form, there may exist others beside the eight forms.
7. The Hindu Law books, the Smritis, describe the eight forms of marriage among Hindus; and the rules of succession are based upon these eight forms of marriage only. The rule of inheritance is based upon the following text of Yajnavalkya:
The property of a childless woman married in one of the four forms denominated Brahma, &c; ,goes to her husband, but if she leave progeny, it will go to her (daughter's) daughters; and in other forms of marriage (as the Asura, &c.;,) it goes to her father (and mother on failure of her own issue).' The other forms of marriage as the Asura are evidently the four unapproved forms described in the earlier part of the Smiriti. Vignanes-vara in the Mitakshara enumerates them in his Commentary on this sloka. ' Of a woman dying without issue, as before stated, and who had become a wife by any of the four modes of marriage denominated Brahma, Daiva, Arsha, Prajapatya, the property as before described, belongs in the first place to her husband. On failure of him it goes to his nearest Sapindas. But in the other forms of marriage, called Asvra, Gandharva, Rahshesa and Paisacha the property of childless woman goes to her parents.' Mitakshara Chapter II Section XI, 11.
8. Thus for purposes of succession to Stridhanam property the Hindu Law recognises only these eight forms of marriage and when a valid marriage has been proved to have been contracted according to the customary rites, then, to decide the question of inheritance we have to determine to which of these eight classes it belongs. Can it then be said that there are any ceremonies that are characteristic of the Brahma or approved form as distinguished from the Asura form, so that their presence or absence as a customary formality or ceremony would indicate the class to which it belongs? Commentators are divided as to the necessity of the prescribed offerings and wedding ceremonies in the case of Gandharva, Rakshasa and Paisacha, marriages (Sacred Books of the East, Volume 25, page 81, footnote to sloka 32). Therefore, apparently they entertain no doubt that there is no difference in the ceremonies as to the other marriages. We have already held that among those classes who recognise Homam as essential to a valid marriage its performance is necessary to constitute the relation of husband and wife. Even in Gandharva marriage, Saptapadi follows Houma. This also assumes that among the five forms including Brahma and Asura, all these ceremonies have to be performed. Brindavana v. Radhamani 12 M.k 72. Mr. Justice Bannerjee in his work ' Hindu Law of Marriage and Stridhanam' page 95, states clearly: 'At the present day, whether marriage is celebrated strictly according to the Brahma form, or whether a nuptial gratuity is taken by the bride's family, the same rites are observed in all cases.' Or in other words, there are no distinctive ceremonies to distinguish the Brahma from the Asura form. The non-performance of the Hortiam and the Saptapadi may thus be relied upon to show there was no valid marriage where they form, with or without others, the criterion of the intention to enter into the contract of marriage, but it cannot be relied upon to prove that the marriage was in any particular form,
9. Our conclusion is strongly supported by the judgment of the Bombay High Court in Moosa Haji Joonus v. Hajee Abdul Rahim 7 Bom. L.R. 447 where it was held that a marriage, according to Mahomedan rites, was an approved form of marriage under Hindu Law. It was found to be the highest form of union known to Cutchee Memmons who follow the Hindu Law and was free from all that was reprehensible. It was held that it was the quality and not the form of marriage that decides the course of devolution.
10. We are, therefore, of opinion that the plaintiff is the heir of his deceased wife.
11. The next question is what is the value of the property left by the deceased. According to the plaintiff all the jewels which were worn by the deceased on the day of her marriage were her property given to her by the 1st defendant and their value is given by the plaintiff and his paternal uncle, the 2nd witness. The latter estimates it at about Rs. 15,000. The other witnesses do not give their value.
12. The 1st defendant admits possession of jewels of the value of Rs. 5,428-9-0 and stated in his evidence that the other jewels worn by the deceased were either family jewels or borrowed for the occasion. It is not uncommon to borrow jewels to be worn by the bride at the marriage and the 1st defendant's evidence is supported by the fact that at the Vagdonam ceremony according to the 1st defendant he promised to give jewels for Rs. 5,000 only and the plaintiff's paternal uncle is only able to say that the 1st defendant promised to give not less than Rs. 5,000. This renders incredible the plaintiff's evidence that he presented jewels worth nearly Rs. 15,0C0. We, accordingly, accept the 1st defendant's evidence on this point.
13. We disallow the plaintiff's claim to the gold chain claimed as he has failed to prove that he gave it to the 1st defendant for repair.
14. As to the defendants' counter-claim they are not entitled to recover as the heirs of their daughter as the marriage was in the Brahma form and as to their allegation that they only gave some of the properties for the marriage ceremony and the others were intended to be taken back, it is not explained why they were not taken back by one. Any property, therefore, allowed to remain with the plaintiff must be presumed to have been given to him. We, accordingly, disallow the counter-claim.
15. We set aside the decree of the learned Judge and give the plaintiff a decree for the recovery from the defendants of the jewels in Schedule V of the 1st defendant's written statement or their value Rs. 5,428-9-0, with costs in both Courts on the above value of the jewels decreed.
16. The counter-claim is dismissed with costs in both Courts.