1. This is a reference by the Presidency Small Cause Court in a suit instituted by the mother of a minor Hindu girl against the undivided coparceners of her father to recover the expenses of the girl's marriage defrayed by the mother.
2. The question referred to this Court is : 'Is the widow of a deceased member of an undivided Hindu family entitled to per form the marriage of a daughter of the deceased, when the father of the deceased and the other male members of the family have not wrongly or improperly refused to perform such marriage, and to recover the reasonable expenses of such marriage out of the joint family property?' The letter of reference sets out the facts as follows:
The plaintiff is the widow of one Sudarsana Aiyangar deceased, who was the son of the first defendant and brother of the other defendants and undivided from them. Plaintiff had a daughter Lakshmi by the deceased, aged 10, who was asked in marriage for one Sundar Ramanuja Aiyangar. The marriage was agreed upon by all the parties and the Nischithartham or betrothal ceremony was performed by the 1st defendant at his own expense and a day was fixed for the marriage. Before the marriage day arrived the father of the bridegroom wrote to the 1st defendant demanding that certain properties should be given by him to the Doy. The 1st defendant did not wish to comply with this demand and proposed to give the girl to another bridegroom to whom plaintiff objected on the ground that he was a widower of 34 years of age.
Thereupon the plaintiff herself entered into negotiations with the family of Sundara Ramauuja Aiyangar, the bridegroom first proposed, and carried out the marriage of her daughter with him without calling upon the defendants to perform it, and without proper notice to them of her intention. The plaintiff seeks in this suit to recover the expenses incurred by her in performing this marriage. The learned judge found that the defendants did not improperly or wrongfully refuse to perform the marriage of the plaintiff's daughter and held that the plaintiff was not therefore entitled to perform the marriage herself and to demand the costs of so doing from the defendants; and he accordingly dismissed the suit with costs.
3. The learned 1st and 2nd Judges of the Small Cause Court were of opinion that the plaintiff is not entitled to recover the expenses from the defendants; while the 3rd Judge is of a contrary opinion; the ground on which the former opinion is based is that the 1st defendant, the father of the deceased had a preferable right to select a bridegroom for the girl and dispose of her in marriage and as he did not wrongly or improperly refuse to perform the marriage the widow acted wrongly in performing it herself.
4. The first question we have to decide is whether the plaint-tiff was entitled to perform the marriage of her daughter in the circumstances set out in the letter of reference. The rules of Hindu Law on which the answer to this question must depend are by no means clear. Ordinarily it would be regarded as the function of the guardian of a minor girl whoever that person might be, to arrange for her marriage and to select the bridegroom. The Hindu Law, however, contains very little authority on the question of guardianship - Mayne's Hindu Law, Section 211. There are some texts relating to the persons who are to give a girl in marriage which have often been referred to in deciding who is entitled to select a bridegroom and which have to be considered in this case. We shall first refer to the state of the authorities on the question of guardianship. The texts of Hindu Law refer only to the property and not to the person of the minor. According to Manu, it is the duty of the Sovereign to protect the property of minors. See chapter VIII, Section 27. The same rule is laid down by Vishnu-Sankha and Likhita, Baudhyayana and Katyayana. See Colebrook's Digest, Volume II (1874 Edn.), pp. 575-76. According to those texts, none of the relations of the minor has a right to be the guardian, but the king is to appoint a proper person to protect the minor's property. Jagannatha says : 'But it should be here remarked that the property of a minor should be entrusted to the heirs and the rest appointed with his concurrence, or if the (sic) be absolutely incapable of discretion, with the consent of a near unimpeachable friend, such as his mother and the rest.' And again, commenting on the text of Katyayana enjoining undivided kinsman of an infant son not to divide the common estate until the minor attain majority, he says : 'In practice, the mother is the guardian of the' minor and all his property * * If the widow be old and incapable of governing her own conduct there is no harm in permitting the estate to be guarded by kinsmen selected by her, for it is only directed that a widow and the rest shall guard the property b) any possible means.' Thus it is observable that the mother's right of guardianship was recognised very early. Mr. Macnaughten in his Principles of Hindu Law, page 103, observes : 'A father is recognised as the legal guardian of his children where he exists, and where the father is dead, the mother may assume the guardianship. But where the duties of manager and guardian are united, she is in the exercise of the former capacity, necessarily subject to the control of her husband's relations and with respect to the minor's person likewise there are some acts to which she is incompetent such as the performance of the several initiatory rites, the management of which rests with the paternal kindred. In default of her an elder brother of the minor is competent to assume the guardianship of him. In default of such brother the paternal relations generally are entitled to hold the office of guardian, and failing such relations, the office devolves on the maternal kinsmen, according to the degree of proximity. But the appointment of guardian universally rests with the ruling power.' Sir Thomas Strange, in his book on Hindu Law published in 1830, Vol. I., p. 71, says that the king is to an extent beyond what is recognised by us in our Courts of Chancery, the universal superintendent of those who cannot take care of themselves, In this capacity, it rests with him, that is with the judicial power exercising for him this branch of his prerogative, to select for the office the fittest among the infant's relations, preferring always the paternal male kindred to a maternal ancestor or female. It is stated that, in practice the mother is the guardian, but as a Hindu widow is herself liable to the same sort of tutelage, it is more correct to regard her as a proper person capable of being consulted on the appointment of one, and if of competent understanding, the concurrence of the minor himself is not to be disregarded - all which only shews how much the choice is a matter of sound discretion. Mr. Mayne says see Section 211 : 'The father and next to him the mother is his natural guardian. In default of her, or if she is unfit to exercise that trust, his nearest male kinsman should be appointed.' Mr. Trevelyan also observes : 'The Hindu Law does not seem to prescribe any positive rules with respect to the rights of guardianship, but by practice and custom the rights of certain relations of a Hindu minor have now almost acquired the force of law. For instance the rights of the father, and of the mother after the death of the father, have been so long and universally acknowledged as to be now indispensable' (p. 64). In Moodookrishna Naick v. Tandavaraya Naick Madrass Decisions of 1852 the Sudder Court held that the mother may act as guardian at partition. On these authorities it may be taken as clearly established that the mother is entitled to the guardianship of a minor boy or girl after the father and that the paternal kindred are postponed to her. Where the family is undivided the surviving coparceners of the father would, no doubt, be entitled to hold possession of the family estate until partition but this does not affect her right of guardianship in other respects see Namasivayam Pillai v. Ammani Ammal (1869) 4 M.H.C.R. 342; K. Venkatasubbiah v. J. Narasappa (1866) 3 M.H.C.R. 116. The right to give a girl in marriage should ordinarily be regarded as part of the general right of guardianship unless it be expressly vested by law in a different person see Shirdar v. Hira Lal Vitha Lal I.L.R. (1887) B. 480 and the mothers right to select a bridegroom would be prior to that of any of the paternal dayadis of the deceased father.
5. We have therefore next to examine the texts relating to the marriage of a girl. These are collected in the Vyavastha Chandrika of Shyama Charan Sirkar, Vol. II, pp. 445 to 447. The principal text is that of Yagnavalkya, Slokas 63 and 64 : 'A father, paternal grandfather, brother, sakulya, the mother likewise are the givers of a girl in marriage. The right to do so devolves on them successively so that, on the failure of the first, the next in order is entitled to perform the ceremony if of sound mind.' The expression translated 'on failure' is 'nasay' which means lit rally 'on the death' but it is explained that the same rule applies to absence in a distant place. The verse occurs in a context relating to the ceremonies to be performed at the marriage. The text goes on to say : 'If they do not give her in marriage they become guilty of destroying the embryo at every menstruation of the damsel. The prescription of spiritual penalty often indicates in the Hindu Law that the obligation is not a legally binding one. Vignaneswara observes : 'This, however, must be understood in the case of a bridegroom endowed with the qualities as mentioned being procurable.' The word translated into 'procurable' by Shyama Charan Sircar is 'sambhav' which literally means 'on the happening.' This shews that the obligation is * * seek out a bridegroom but only to make the gift of the bride to a bride groom when he is available. If the relations mentioned in the text neglect their duty the girl is after the lapse of a certain time entitled to give herself in marriage to a bridegroom. Having regard to the language and the context, certainly it is doubtful whether on its proper construction the text does not relate merely to the ceremonial act of giving so as to make the religious rite most efficacious although it is true that it has been assumed in several reported cases and in the writings of some modern authors on Hindu Law, to include the right of disposing of the girl by selecting a bridegroom for her. Kamalakara, in his Nirnaya Sindhu, in commenting on the text says that 'when the father is dead, if the brother of the girl be asamskirtha, that is 'uninitiated,' the mother should make the gift,' which indicates that in the author's view ceremonial competency is what the text deals with. It will be noticed that the author prefers the mother to the other sapindas of the girl's father. Narada and Vishnu have also got texts similar to Yagnavalkya though Narada places the maternal grandfather and the maternal uncle before the sakuylas and the mother, and Vishnu also places the maternal grandfather before the mother. The language of all these texts is, moreover, that of an obligation laid on the relations mentioned and not of a right conferred on them. This was the view taken in Venkatacharyulu v. Rungacharyulu I.L.R. (1890) M. 316. Where the obligation is one enforceable in law, it would no doubt follow that the person under obligation has also a corresponding right to perform the act which he is bound to do, but it can hardly be held that any of the persons mentioned in the texts can be legally compelled to give the girl in marriage or be cast in damages for failure to do so see Namasivaya Pillai v. Ammani Ammal (1869) 4 M.H.C.R. p. 339 . The consequence attached to the failure according to the Hindu Law, is, as already observed that the person failing will be guilty of a heinous sin - a pronouncement which would indicate that the obligation is only a moral and not a legal one. It has also been held that the provision as to the proper person to be the giver of the girl is only directory in its character see Kusalchand and Lalchand v. Bat Manu I.L.R. (1886) B. 247 and Venkatacharyulu v. Rungacharlu I.L.R. (1890) M. 316 both of which cases relate to the invalidity of the marriage in consequence of the gift having been made by the mother without the consent of the father. A contrary interpretation of the texts by holding them to be obligatory with reference to the proper person to make a gift of the bride would work serious inconvenience in practice. In practice, as a matter of fact, the mother is the person who exercises the right of choice of a bridegroom when the father is dead. That such is the case when the family is divided or when she is not living with the undivided dayadis of her husband there can be no doubt although the texts of Yagnavalkya and other Smriti writers do not make any distinction between a divided and an undivided family. We are inclined to hold that the texts really deal only with the religious rite of making the gift or danam of the bride; (see 4 M.H.C.R., p. 344); that they are only directory and not obligatory even from a religious point of view; that they create no legal right or obligation; that they do not prescribe any special rules with respect to selecting a bridegroom or of disposing of a girl in marriage as opposed to the ceremonial act of giving, and that the right to select a bridegroom must therefore be taken to vest in the guardian of the girl as part of the general rights of guardianship. In Maharanee Rambansi Kunwari v. Maharanee Suhba Kunwari (1867) 7 W.R. 321, where the question was whether the step-mother was entitled to the custody of her step-daughter with a view to giving her in marriage in preference to the paternal grand mother of the girl, Lock and Macpherson JJ. no doubt observe : 'We are inclined to think that the texts already referred to lay down a special rule with respect to the right to dispose of a girl in marriage, different from the right of guardianship.' The learned Judges, however, abstained from deciding the point as they held that 'the paternal grandmother had the preferable right of guardianship as she was more nearly related to the girl than her step-mother.' The dictum in the above case was adopted by Farran J. in Nanabhai Ganpatrai v. Janardhan Vasudev I.L.R. (1886) B. 110 but the learned Judge was dealing with the right of the father of a girl as against the mother and the question arose before him, moreover, in an application by the father farad interim injunction restraining his wife from performing the daughter's marriage, pending the suit for a declaration of his right of guardianship. It is further not clear from his judgment that he did not intend to decide the question on the ground of the father's superior right of guardianship, for I he observed : 'I am unable in the absence of authority, on a rule of this kind, to hold, that the plaintiff has forfeited his parental right to give his daughter in marriage, or that the defendants are justified in marrying her without her father's consent and against his wish - that important question must be decided when the case comes on for hearing.' For the reasons already mentioned we doubt the correctness of the dictum of the Calcutta High Court in Maharanee Rambansi Kunwari v. Mehemnu Subba Kummari (1887) 7 W.R. 321.
6. But assuming that the above mentioned texts propound a special rule with respect to the right to give a girl in marriage, we agree with the view expressed in 4 M.H.C.R. p. 343 that they are obsolete so far, at any rate, as the mother's right is concerned. In that case the divided brother of a deceased Hindu sued the widow for a declaration of his independent legal right to give in marriage her infant daughter to a person of his own choice without her intervention. It was enough for the purpose of the case to decide that he had no such unqualified right, and the court consisting of Scotland C.J. and Junes J abstained from deciding more. But their observations show that in their opinion the mother's right to select a bridegroom is superior to the brother's. They observe : 'The strictly legal position and rights of the defendant (i.e., the mother) as the guardian of her daughters and the possessor of her husband's property presents still stronger grounds of objection in opposition to the plaintiff's claim. It was conceded in argument that the law has always recognised a mother's right to be the guardian of her minor son or daughter upon the death of her husband in preference to his kinsmen. Such a recognition is very inconsistent with the disposal of her daughter in marriage by her husband's brother or other relations without reference to her and tends forcibly to support the view we have expressed with respect to the state of dependency imposed on women. Thus the recognition of her position as guardian militates against the law ever having given the exclusive right confended for. But now that the texts declaring such a state of dependency have become, as did the Roman law relating to the Jatela Muliebris obsolete and a woman acts independently as guardian and such acts are perfectly legal, it would amount to almost an absurd contradiction to hold that although competent and capable to be guardian a mother has no right to be consulted in the choice of a husband for her daughter.' In Krishto Kissor Nughy v. Kadar Moye Dossi (1878) L.R. 2 C. 583 and Shirdhar v. Hiralal I.L.R. (1887) B. 480 the right of both parents to bestow a girl in marriage was regarded as being stronger than, and of a different character from that of other persons. In Tulshe. v. Gopal Rai I.L.R. (1884) A. 632 it was held that the mother is the 'most natural and proper person' to arrange for the marriage of a girl and in Kaulesra v. Jorai Kasanndham I.L.R. (1905) A. 233 even an outcasted mother was held not to have forfeited her right of guardianship.
7. We are, therefore, of opinion that the plaintiff as the proper personal guardian of her minor daughter was entitled to select a bridegroom for her and to give her in marriage and that in order to entitle her to do so it is not necessary for her to show that the father of the deceased wrongly and improperly refused to pertorm the marriage. In the present case, on the facts stated in the letter of reference, her act must, in any event, be regarded as proper, as the choice of the bridegroom had been approved by the 1st defendant. This view is in accordance with the decision of this Court in S.A. 566 1889 where Collins C.J. and Parker J., held that the mother could not be held to be acting in fraud of the rights of the father when the latter had approved of the bridegroom, and the only difference between him and his wife was regarding the amount of money that should be received as bride-price.
8. We now proceed to deal with the second question, namely 'whether the mother is entitled to recover the reasonable expenses of such marriage out of the joint family property.' The decision of this question has been made by the learned Judges of the Small Cause Court to rest on the applicability or otherwise of Section 69 of the Indian Contract Act. That section lays down that 'a person who is interested in the payment of money which another is bound by law to pay and who therefore pays it is entitled to be reimbursed by the other.' It is undoubted law that when a Hindu co-parcener dies leaving an unmarried daughter, his survivors are bound, out of the joint family property, to defray the expenses of the marriage. This does not at at all involve the conclusion that they are entitled to select a bridegroom for her though they ate of course bound to pay only the reasonable expenses of the marriage according to the circumstances of the family and not any amount which might have been actually spent for it. In Vaikuntam Ammangar v. Kallapiran Aiyangar I.L.R. (1900) M. 512 a decree was passed in favor of the mother of a minor girl for the expenses of her marriage, it being held that when the mother had lawfully performed the marriage of her daughter and had in consequences incurred expense she was entitled to recover it from her husband's undivided brother. The judgment is not expressly based on Section 69 of the Contract Act though it was referred to in the argument. In Vaikuntam Ammangar v. Kallaphiran Aiyangar I.L.R. (1902) M. 497 in which the parties were the same as in Vaikuntam Ammangar v. Kallaphiran Aiyangar I.L.R. (1900) M. 512 the decison is based on Section 69. In our opinion it is doubtful whether that section is applicable to such a case, as it apparently contemplates cases where one person is bound by law to pay money and another is interested in the payment of it. It apparently has relation to payment to a third person and it is difficult to apply it to a case where the person is bound under the law to make a payment directly to the person who has incurred the expense. Moreover as observed in Subramania Aiyar v. Rungappa I.L.R. (1909) M. 232, to which one of us was a party, the interest referred to in the section is apparently a pecuniary interest. See also Pollock &Mulla; on 'Contracts,' p. 287. It is immaterial, however, in our opinion whether Section 69 of the Indian Contract Act is applicable or not. Under the Hindu Law the defendants are bound to provide the expenses of the plaintiff's daughter's marriage out of the joint family property in their hands, and if, as we hold, the plaintiff was entitled to perform the marriage, she has, under the law, a right of action against them to recover the expenses of m image. There is no reason for holding that the provisions of the Contract Act are exhaustive of all cases in which a person under the English Law would be taken to have aright of action against another as for money paid to his use. It has been held that the Contract Act is not an exhaustive code as the preamble to the Act itself shews see The Irawady Flotilla Co. v. Bagawan Doss I.L.R. (1891) C. 620 ; Narayanasawmi Redi v. Osu Reddi I.L.R. (1901) M. 548; Govardhana Gokul Doss Tejpal v. The Bank of Bombay I.L.R. (1890) B. 48 and Chandra Sakharkar v. Nagion Chandra (1906) 4 C.L.J. 555. In Bradshaw v. Beard (1862) 12 B.C.R.p. 344, where the brother of a lady who had separated from her husband on account of a quarrel performed her burial without communicating with the husband it was held that he was entitled to recover the costs of the burial from the husband as money paid to his use. Willes J. observed : 'Where the deceased has a husband, the performance of that last act of piety and charity devolves upon him. The law makes that a legal duty which the law and nature of society make a moral duty; and upon his default the law obliges him to recoup the reasonable expenses of the person who performs it for him. I am not, therefore, surprised to find that there are two authorities in this court Jenkins v. Tucker H.B.L. 91 and Ambrose v. Kerrison 1850 10 C.B. 776 to support this view, and I feel no alarm that this doctrine may induce a stranger to thrust himself between husband and wife for the mere purpose of preventing the husband from performing that duty himself. Generally speaking, parties are not allowed to claim in respect of monies expended for others without request. If the plaintiff here had been shown to have been guilty of any fraud in concealing from the husband the fact of his wife's death and so preventing him from performing the last duty to her remains, the case would have presented a very different aspect, but I see no reason for imputing any such misconduct to the plaintiff. Therefore, I think the plaintiff is entitled to recover the reasonable expenses incurred by him in the performance of that duty which the defendant ought to have discharged but has failed to discharge' see also Dalai Kunwari v. Ambica Pratap Singh I.L.R. (1903) A. 266; Vrijbukanan Das v. Baiarvah I.L.R. (1907) B. 26; Keener on Quasi Contracts pp. 341 to 344. The present case is much stronger than that reported in Bradshaw v. Beard (1862) 12 B.C.R. p. 344 as in this case, according to our view, the law gave the plaintiff the right to perform the marriage and threw on the defendants the obligation to pay for it. We hold, therefore, the plaintiff is entitled to recover the expenses of the marriage out of the joint family property of the defendants. We answer both parts of the question referred in the affirmative.
9. The Small Cause Court will provide for the costs of this reference.