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 third defendant by defendants Nos. 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 first defendant's death, and that the alienations by her to defendants Nos. 4 and 5 are not binding on him. The Subordinate Judge found the adoption to be proved on the 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 Nos. 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 first defendant was admittedly the second defendant's deceased wife's sister's daughter. It is claimed that she could not therefore have legally married the second 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., (1888) Mad., 49 adopting the rule stated in the text. The text has been translated by Mr. Ghose in his 'Principles of Hindu law', 3rd edition, Volume II, page 830, as follows:
A girl with whom there is no relationship unseemly for marriage should be married. The relationship such as make 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.
3. 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 Ragavendra Rau v. Jayaram Rau I.L.R.,(1897) Mad., 288, 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 Ramchandra v. Gopal I.L.R.,(1903) 32 Bom., 619 (see pages 630 to 632), which was followed in Yamnava v. Laxman Bhimrao I.L.R.(1912) 36 Bom., 533.
4. 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.
5. As the learned Judges in Ragavendra Rau v. Jayaram Rau I.L.R., (1897) Mad., 288 , 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 was himself a Brahman and was thoroughly conversant with the practice and sentiments of the Brahman 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 Brahmans 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.(1888) , Mad., 49 (F.B.) , regarding the rule of Virudha Sambhandham, 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 Ragavendra Rau v. Jayaram Rau I.L.R.(1897) , Mad., 288, has stood unchallenged now for over twenty years, and we think that we should take it as having settled the question in favour of the validity of such a marriage among Brahmans.
6. 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 a Tamil Brahman in the south of the Presidency whereas the present case refers to a Telugu Sudra in the Northern Circars, 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 Ragavendra Rau v. Jayaram Rau I.L.R., (1897) Mad., 288, included that of such a man as the Hon'ble Mr. N. Subba Rao, who is a Telugu Brahman of the Northern Circars. The Court made no distinction in its finding between Tamil Brahmans of the south and Telugu Brahmans 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 Brahmans as it purports to do.
7. But it is no doubt a case relating to Brahmans 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 Brahmans in particular; they were not meant to apply to Sudras at all. The Velamas no doubt follow Brahman customs and have copied several of their rules, but when the Brahman custom itself is in favour of the legality of such a marriage as we are now 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 Brahmans 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 defence witnesses Nos. 2, 3 and 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 probabilizes the existence of a similar custom among them.
8. As against that evidence our attention was drawn to the evidence of plaintiff's witnesses Nos. 2, 3, 5, 6, 7 and 21. The effect of the evidence of the plaintiff's witnesses is, we think, correctly 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 Nos. 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.
9. It is for the plaintiff to establish his plea, that the rule of prohibition relied on by him applies to the first defendant's marriage and renders it invalid. The Grihya Parisishta rule on the point is not observed even by the Brahmans. 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. The argument 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 Ragavendra Rau v. Jayaram Rau I.L.R., (1897) Mad., 212 with reference to Brahmans 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 first defendant's marriage with the second defendant, and that on the other hand the defence evidence shows that it is in accordance with the recognized practice in the caste.
10. 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 then 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 third defendant in adoption in 1910. The evidence of defendants Nos. 1 and 2 and the documents referred to by the Subordinate Judge, Exhibit II series, III, and X to XXI (a) show that plaintiff and his family and the defendants were moving on terms of intimacy till recently and that plaintiff himself took no exception to the marriage. In these circumstances it is a satisfaction to find that we are not obliged to declare the marriage illegal.
11. No other point has been argued before us. Finding the 1 and 2 defendants' marriage to be perfectly legal it follows that the objection to the legality of the third defendant's adoption based solely on its illegality fails. The plaintiff's appeal must therefore be dismissed with costs.