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D. Srinivasa Iyengar (Died) and anr. Vs. Thiruvengadathaiyangar and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1914Mad226; (1915)ILR38Mad556
AppellantD. Srinivasa Iyengar (Died) and anr.
RespondentThiruvengadathaiyangar and anr.
Cases ReferredBhagwan v. Warubai I.L.R.
hindu law - suit for partition by a minor co-parcener--right to mesne profits--no execution--separate living of minor co-parcener--same rule as in the case of major co-parceners--suit for account--principle different--provision for expenses of upanayanam and marriage of co-parceners in a partition suit--setting apart of funds--whether upanayana and marriage of male coparceners are obligatory ceremonies--provision for marriage of unmarried sister whether obligatory--whether expenses of marriage of a male coparcener is a reasonable expense--right to maintenance of mother--whether son's share only or share of step-sons also liable--doctrine of mitakshara as to right by birth examined--civil procedure code (act v of 1903), 0rder xli, rule 3. - - the subordinate judge has found that the.....sundara ayyar, j.1. the suit in this case is one for partition by a hindu minor. the first defendant is the plaintiff's stepbrother. the fifth defendant is the plaintiff's mother and the first defendant's step-mother. the sixth defendant is the plaintiff's elder sister. the fifth and sixth defendants were made parties on the ground that provision should be made for the maintenance of the former and for the maintenance and marriage and other expenses of the latter.2. the first question raised in second appeal is whether the plaintiff is entitled to a share of the amount recovered from a life insurance company on a policy of insurance taken out by doraiswami ayyangar, the father of the plaintiff and the first defendant. the policy states that it was taken for the benefit of doraiswami's.....

Sundara Ayyar, J.

1. The suit in this case is one for partition by a Hindu minor. The first defendant is the plaintiff's stepbrother. The fifth defendant is the plaintiff's mother and the first defendant's step-mother. The sixth defendant is the plaintiff's elder sister. The fifth and sixth defendants were made parties on the ground that provision should be made for the maintenance of the former and for the maintenance and marriage and other expenses of the latter.

2. The first question raised in Second Appeal is whether the plaintiff is entitled to a share of the amount recovered from a Life Insurance Company on a policy of insurance taken out by Doraiswami Ayyangar, the father of the plaintiff and the first defendant. The policy states that it was taken for the benefit of Doraiswami's wife and two sons of whom the wife and one of the sons died, and the first defendant alone was left; but both the Courts have found that the premia for the policy were paid out of funds belonging to the whole family. This finding has been attacked in Second Appeal; but we are unable to interfere with it. It was argued that the finding of the Lower Appellate Court was based in part on the supposition that Doraiswami Ayyangar was the managing member of the family and that this was not the fact. But no objection was taken to the finding on this ground in the Memorandum of Second Appeal; nor does Doraiswami Ayyangar's management seem to have been denied in the Lower Appellate Court. The plaintiff was therefore rightly held entitled to a share of the insurance money.

3. The next question is whether the decree in plaintiff's favour for mesne profits for two years before the suit is right. It was alleged by the plaintiff that he and his mother were turned out of the family house and had to live elsewhere. The Subordinate Judge has found that the plaintiff has failed to prove that they were turned out of the house; but he allowed mesne profits, because he held that a minor plaintiff is entitled to recover mesne profits in a suit for partition. I am of opinion that there is no foundation for this view. The case relied on by the Subordinate Judge, Krishna v. Subbanna I.L.R. (1884) Mad. 564, does not support it. In that case it was observed: 'If an adult member is not excluded but chooses to live apart from the manager, then, as he did not choose to enforce partition, it may be very reasonable that, apart from the consideration of fraud or misappropriation by the manager, the principle above stated should be applied to him;' (that is the principle that the manager is not bound to account for past transactions or past income). 'But that principle cannot apply to the case of an infant member, who has been excluded by the manager from the family house and from enjoyment of the property. The infant is, by reason of infancy, incompetent to authorize the act of the manager, or, at all events, cannot be legally bound by any authorization in fact given during his infancy. Moreover, the infant being excluded, cannot be assumed in point of law or fact to have known of any act of the manager.' The observations relate primarily to a suit for account including an account of past profits. An infant who has been excluded from commensality was held entitled to an account of past profits during the period of his exclusion. They do not support the view that the mere fact that the infant was living separately when it was not due to any fault on the part of the manager would entitle him to recover a share of the profits. The manager of a Hindu family is entitled to spend the income for the benefit of all the members of the family. It is unnecessary to consider whether a member living separately could make a claim for the expenses of his maintenance; for that is not the question raised for decision before us. The manager after making all proper expenditure is expected to add any surplus that may be left to the family funds. No member is entitled to claim a share of past profits on the ground of his separate residence. If he is excluded by the act of the manager, he has, no doubt, been held to be entitled to call upon the manager to account for the profits received during the time of his exclusion. The manager would then be entitled to credit for all proper expenditure including any investments made in which of course the excluded member would be entitled to share. With respect to any profits for which the manager is unable to account, the excluded member would be entitled to his share of them. There is no reason why the same principle should not apply to a minor co-parcener. No authority has been cited in support the application of a different principle. The question here is not one of the right to an account. No doubt one reason for refusing an account to an adult co-parcener suing for partition has been stated to be that 'every adult member of an undivided joint family living in commensality with the Karta, must be taken, as between himself and the Karta, to be a participator in, and authoriser of, all that is from time to time done in the management of the joint property to this extent, namely, that he cannot without further cause call the Karta to account for it.' Abhayachandra Roy Chowdhry v. Pyari Mohan Guho (1870) 5 B.L.R. 347 . This reason would not of course be applicable to the case of a minor member. But the point has no bearing in deciding whether a minor is entitled to claim mesne profits. The claim for mesne profits must therefore be disallowed., The Subordinate Judge's decree awarding Rs. 61 1/2 on this account must be set aside.

4. The next question is whether the expenses of the plaintiffs' upanayanam and marriage and the sixth defendant's marriage were rightly provided for in the decree for & Jairam v. Nathu I.L.R. (1907) Bom. 54 and Mahadeva Pandya v. Rama Narayana Pandya : (1903)13MLJ75 , are clearly in support of the plaintiff's case. Two contentions have been raised in this Court:

(1) that such provision can be made, only out of the separate or self-acquired property of the father of the parties, and cannot; be made out of the ancestral property of the father derived from his father, and

(2) that the plaintiff is entitled to have a provision made only for his upanayanam and not for his marriage, the latter not being a necessary samskara according to Hindu Law.

5. The first contention is entirely without foundation. Mr. P, R. Ganapathi Ayyar, the learned vakil for the plaintiff who has argued the question very fully, relies on certain passages in the Mitakshara. Yagnavalkya's text, chapter 2, verse 124, does not expressly refer to the ceremonies to be performed for the brothers, the text being to the effect that 'Uninitiated sisters should have their ceremonies performed by those brothers who have already been initiated, giving them a quarter of one's own share,' But the text has been interpreted by commentators as including the ceremonies of brothers too. The Mitakshara in chapter 1, Section 7, verse 3, expressly provides, 'If any of the brothers be uninitiated when the father dies, who is competent to complete their initiation? Uninitiated brothers should be uninitiated by those for whom the ceremonies have been already completed.' Verse 4 lays down, 'By the brethren who make a partition after the decease of their father, the uninitiated brothers should be initiated at the charge of the whole estate.' Reliance is placed on chapter 1, Section 6, verses 14, 15 and 16. These verses deal with the power of the father to make gifts to one or another of the sons. The power to make gifts is now regarded as confined to the separate or self-acquired property of the father. The contention is that these verses show that Section 3, verse 1, dealing with partition after the father's decease-' Let sons divide equally both the effects and the debts, after [the demise of] their two parents,' relates only to the self-acquired property of the father. To a question put to the appellant's vakil from the Bench, which text, then, provides for the division of the father's ancestral property, his answer was that Section 5, verse 1, does so. 'But among grand-sons by different fathers the allotment of shares is according to the fathers.' But this verse is intended merely to show that where the brothers have an unequal number of sons, the grand-sons take per stirpes and not per capita. Section 1 of chapter 1 was referred to as showing that the father and his sons have equal rights in the property descending from the grand-father; But this does not help the contention that Section 5, verse 1 of chapter 1 and Section 3 taken together show that the provision in Section 7 for the samskaras of the uninitiated brothers and sisters is intended to be made only out of the self-acquired property of the father.

6. Reference is also made to the Smrithi Chandrika, chapter 4, verses 36 and 37. Verse 36 cites a text of Vishnu which runs thus: 'The text of Vishnu that 'the initiations of unmarried daughters are to be defrayed in proportion to his own wealth' is applicable either to a case where no partition of heritage takes place from there being an only son, or to a case where brothers live in union.' Verse 37 is in these terms: Hence Vyasa, brothers whose investiture and other ceremonies have not been performed are to be initiated in due time from the paternal wealth alone by brothers whose sacraments have already been completed. Unmarried sisters are also to be initiated by their elder brothers according to law.' The word 'alone' is the translation of the Sanskrit word the meaning being that the paternal wealth must be used for the purpose indicated. The use of the word 'paternal' is relied on as showing that only the father's own wealth was intended. But this contention cannot be upheld. The language is comprehensive and would take in all ancestral property. The same observation applies to similar texts of Brihaspathi and Narada in verses 38 to 41. There is nothing to show that the author of the Smrithi Chandrika understood the expression 'paternal wealth' as meaning the self-acquired property of the father. The texts cited from the Madaviya, pages 17 and 18 of Burnell's edition, the Viramitrodaya, page 81 of Sitarama Sastri's 'Hindu Law Books' and the Vivadachintamani, page 49 of the same book do not carry the case any further. I must hold that the plaintiff is entitled to have funds set apart for his ceremonies out of the ancestral property which descended to plaintiff and the first defendant from Doraiswami Ayyangar.

7. The second contention is that the ceremonies for which the plaintiff is entitled to have provision made do not include his marriage. It is argued that marriage is not a necessary ceremony in the case of a Brahman male and Govindarazulu Narasimham v. Devarabhotla Venkatanarasayya I.L.R. (1904) Mad. 206, is relied on. That case decided that a debt borrowed for the expenses of the marriage of a co-parcener could not be enforced against the other co-parceners. That position has been considerably shaken by the observation contained in Kameswara Sastri v. Veeracharlu I.L.R. (1911) Mad. 422. The learned Chief Justice who was a party to the judgment in the earlier case was subsequently prepared to reconsider his view. The question has been elaborately considered by Krishnaswami Ayyar, J. in Kameswara Sastri v. Veeracharlu I.L.R. (1911) Mad. 422, and by Chandavarkar, J. in Sundrabai v. Shivnarayana I.L.R. (1908) Bom. 81. I have nothing to add to the reasons given by those learned Judges for holding that marriage is a proper ceremony for a Brahman and an obligatory ceremony for all with extremely few exceptions. See also West and Buhler, page 781, Strange's Hindu Law, volume 2, pages 286-288, Sircar's Hindu Law (third edition), page 245. It was decided very recently in Gopalakrishnamraju v. Venkatanarasaraju (1912) M.W.N. 903 by a Full Bench of this Court after the arguments in this case were heard that marriage is considered an obligatory ceremony for Hindus except in the case of one who is prepared to live the life of a perpetual Brahmachari or of a Sanyasi and that a debt borrowed for the marriage of one of the co-parceners is binding on all. This judgment in my opinion practically concludes the point raised in this case. The first defendant has no right to compel the plaintiff to abjure marriage and to become either a naishtika brahmachari or a sanyasi. The plaintiff has the right to become a grahasta and to live the life which is ordained for Brahmans in general; marriage is an indispensable ceremony (avasyam kartavyam) for all except the most spiritually advanced persons. The family property should provide the means for such an initiatory ceremony. But I do not think that it is necessary to rest the decision in this case on the ground that marriage is absolutely obligatory. There are no doubt texts in favour of the position that the initiatory ceremonies in the case of the three higher castes end with the upanayanam. See Smrithi Chandrika, chapter 4, verse 42 which is supported by the author of the Vivadachintamani. The Smrithi Chandrika text has been explained by Chandavarkar, J., in Sundrabai v. Shivnarayana I.L.R. (1908) Bom. 81. See Seetarama Sastri's edition, page 49. There can at any rate, be no doubt that marriage is regarded as a most proper ceremony for every Hindu. This is sufficient to justify the plaintiff's claim for a provision for his marriage. The first defendant has been married at the expense of the family. There is no reason for treating the brothers differently. Modern custom is undoubtedly in favour of allowing the provision. In deciding what ceremonies are regarded as proper and necessary, regard should be had in my opinion to the sentiments of the community especially when there is a difference of opinion amongst text writers. I am also prepared to hold that a brother who has had his own marriage performed at the family expense is not entitled to object to a similar provision being made for the other brothers. The Subordinate Judge's view therefore must be upheld with respect to the allotment both for the plaintiff's Upanayanam and for his marriage. In the result the appeal must be allowed in so far as the award of mesne profits is concerned and dismissed in other respects.

8. Memorandum of Objections. The first respondent has put in a Memorandum of Objections objecting to the Lower Court's refusal to make a provision for the maintenance of the late fifth defendant, the plaintiff's mother. A. preliminary objection was raised by Mr. Ganapathy Ayyar to the memorandum on the ground that the fifth defendant who appealed against the decree of the District Munsif disallowing a provision for her maintenance has not herself appealed to this Court against the disallowance and that it was not competent to the plaintiff to do so. The ground on which the Subordinate Judge refused to make an allotment for the fifth defendant's maintenance was that her maintenance should come out of the plaintiff's own half share of the property and cannot be enforced against the first defendant's half share. The first respondent (i.e., the plaintiff) is therefore affected by the judgment and is interested in disputing its correctness. The fifth defendant is a party to the Second Appeal. This Court has power under Order XLI, Rule 33 of the Civil Procedure Code, to pass such decree as it thinks proper dealing with the rights of all the parties before it. The preliminary objection must be disallowed.

9. On the merits the Memorandum is entitled to succeed. The question was decided so long ago as 1870 in the Zamindar of Oorcaud v. Meenakshi Ammal (1870) 5 M.H.C.R. 377 by Holloway and Innes, JJ. The Smrithi Chandrika supports her claim. See Chapter 4, Verse 14. 'The word mother includes a step-mother.' In Verse 7, a text of Vyasa is quoted.' Even childless wives of the father, are pronounced equal sharers and so also are all the paternal grandmothers: they are declared equal to mothers. 'See Kumaravelu v. Virana Goundan I.L.R. (1882) Mad. 29. The basis of the mother's right is, as pointed out by the author, the interest that she has by reason of her relationship to her husband. This reason is equally applicable to the step-mother. Mr. Ganapathy Ayyar's argument that the question was not really considered in the Zamindar of Oorcaud v. Meenakshi Ammal (1870) 5 M.H.C.R. 377. cannot be accepted. The same view was apparently taken in Subbarayalu Chetti v. Kamalavalli Thayaramma I.L.R.27(1912) Mad.147 though the decision itself proceeded on another ground. The case relied on by the Subordinate Judge Hemangini Dasi v. Kedarnath Kundu Chowdhry I.L.R. (1889) Cal. 758, was based upon the express provisions of the Dayabhaga according to which the step-mother's right is only against the share of her sons.

10. The Subordinate Judge must be requested to return a finding on the seventh issue. He will also find whether the fifth defendant is in possession of any family jewels as distinguished from her own stridhanam jewels and if so what is their value. One month will be allowed for the findings and seven days for objections.

Sadasiva Ayyar, J.

11. I have had the advantage of perusing the judgment of my learned brother in this case. I agree with him in all the conclusions formulated in that judgment except on one point which however is not unimportant. I am therefore obliged to write the following separate judgment and I shall notice in it only two points of Hindu Law,-one point on which I regret I have to differ from, and the other point on which I agree with, my learned brother.

12. The distinction between the ancestral and the self-acquired property of a father was not known to the ancient Hindu Law. The expression 'paternal estate' when used in Hindu Law books does not mean the father's self-acquisition alone but merely means the estate which the son can inherit or obtain through his relation as such son to his father. In Venkatarazu v. Kotayya Second Appeal No. 360 of 1911 I have attempted to show that according to the Shastras, sons had no right in the property which belonged to their father till both their father and mother were dead. Sankha and Likhita state (see Jagannatha, page 199) that even the properties acquired by the sons themselves independently of their father cannot be partitioned among them while the father lives since the sons are not their own masters in respect of any wealth so long as their father lives. Harita Smriti also says the same. Manu says that three persons including a son can have no wealth of their own so long as their superior is alive. Of course, we cannot now wholly go back to the ancient Law of the Shastras and we have to accept the Mitakshara which, relying mainly on a supposed text of Gautama, gives to the sons by their mere birth, rights in the, (self-acquired and ancestral) properties of the father. This: supposed text of Gautama is not found in Gautama's Institutes now and is opposed to the undoubtedly genuine text of Gautama that property is acquired only in five modes, viz., inheritance, purchase, partition, seizure, or finding. Even if it-is genuine, it can only mean that 'birth' gives the son an' inchoate and contingent right to inherit to his father or mother on their death and not a right in proesenti in their property as soon as he is conceived. The text of Yagnavalkya in respect of ancestral immoveable property not being at the disposal of the father must be interpreted in the light of the moral obligation of a grihasta to provide for the support of his wife and children: because not only those already born but even those thereafter to be born to him require maintenance and support according to Vyasa's text. There are passages in the Smritis to show that to pass the ownership in immoveable property, the consent of even neighbours and the whole of his village is requisite, the: unrestricted private ownership and right of alienation in landed property having been greatly discouraged in some portions of the long past period of Hindu civilisation. In fact, the Mitakahara (Chapter I, section I, slokas 24 to 27) clearly says that the father is not master of the immoveable property acquired even by himself. The text of Yagnavalkya about the ownership of father and son being equal in wealth received from the grandfather was merely intended as a moral injunction prohibiting the unequal division of the grand-father's wealth between the father and sons. In fact, this text has been rightly interpreted as giving only a figurative ownership to the sons in order that the father might fulfil his moral obligation of not making an unequal division of such property between himself and his sons. It was not at all intended to give a legal right of present ownership in ancestral property to the son. Some other commentators explain the text by saying that it was intended that where the father died leaving a son and grandsons by a deceased son, the grandsons by the deceased son should obtain a share equally with their uncle. In other words, it was intended that the surviving son alone as the nearest sapinda, should not take the whole of the estate to the exclusion of the grandsons by the deceased son. It was therefore stated that the right of inheritance after the grand-father's death is the same in the case of the son and the grandson (by a pre-deceased son). The son is never considered in the ancient text-books as the true owner of any property so long as his father or mother is alive. See Jagannatha's Digest, page 283. Yagnavalkya says that among those whose fathers are deceased the allotments of shares is according to the fathers. Katyayana similarly says, 'should a brother die before partition, his share shall be allotted to his son provided he has received no fortune from his grand-father. The son's son shall receive his father's share from his uncle or from his uncle's son.' As I have said already, it may be that to avoid the consequences of the logical effect of the dictum that the estate belongs to the nearest sapinda that the Smriti texts make the son, the grandson and the great-grandson of the deceased owner to equally partake (per stirpes in the case of the grandson and the great-grandson) the estate of the deceased owner instead of the son alone taking the whole as such nearest sapinda. But if a great-great-grandson is left, he cannot claim to inherit any share of his great-great-grand-father's property directly from the deceased owner. The Mitakshara's having laid down the principle of present right by birth instead of a mere figurative right has led to a very large amount of anomalies in the Hindu Law. To adopt the language of Beaman, J. in a recent Bombay case, (that learned Judge was referring to the Muhammadan Law), 'There seems now little hope of expecting from the vast entanglements of the Mitakshara Hindu Law, anything like consistent principles, or intelligible classifications, and every single rule seems to be open to innumerable exceptions, many of which appear to conflict in principle with the main rule.' This modern main rule as to right by birth was in hopeless conflict with the son's undoubted legal liability under the ancient Hindu Law to pay his father's debts and hence the Privy Council have been obliged to virtually destroy this rule by allowing the validity of alienations effected to discharge the father's debts provided they are not illegal or immoral. This alleged right by birth is also ignored when the father was given the right to alienate his self-acquisitions, even if they were immoveables. This same right toy birth has led to the so-called right of survivorship unknown to the ancient Hindu Law. It has also virtually killed the numerous texts which show that the great-great-grandson has no right to inherit directly the property of his great-great-grand -father, if the great-great-grand-father at his death left nearer descendants. The clear texts (see Manu, slokas 186 and 187 of Chapter 9 and the texts of Katyayana) which deny the right of the great-great-grandson to inherit could not be explained away except by much involved ingenuity. Such misapplied ingenuity has been abundantly shown by the commentators who wrote the Viramitrodaya, the Smritichandrika, the Madhavya, the Vivada Chintamani and the Vivada Ratnakara. These unsatisfactory commentaries, the Courts have been obliged to accept as making the rule as to the non-existence of succession and inheritance beyond the third descending line inapplicable to the cases governed by the Mitakshara Law. (See the elaborate judgment of my learned brother Sundara Ayyar, J., in Tirumal Rao Sahib v. Rangadani Rao Sahib : (1912)23MLJ79 . For myself, I am unable to interpret the texts of Manu and Katyayana as intended only to apply to cases where the property to be inherited was the acquisition of the great-great-grand-father because the Mitakshara confers right by birth even in self-acquisitions to the sons and through them, of course, to the grandsons and) great-grandsons. I am clearly of opinion that the Mitakshara principle of right by birth utterly destroys the rule laid down in the texts of Katyayana and Manu that the great-great-grandson has no claim to inherit directly his great-great-grand-father's property.

13. When, therefore, the Hindu Law books treat of partition of the paternal estate-I would put it rather as the parental estate they did not mean to confine themselves to the partition of the father's self-acquired estate because according to the ancient law, both his self-acquisition and his ancestral estate are his own and are parental estate so far as the sons are concerned. As my learned brother has pointed out, there are no separate chapters in the Smritis or even in the commentaries treating of the partition of self-acquired estate as apart from the ancestral estate-of the father. The only difference made is between partition during the father's life-time and partition after the father's death. Mr. Ganapathi Ayyar has attempted to confine the texts of Yagnavalkya and other Smriti writers (Vishnu, Vyasa, Brihaspati and Narada) which required initiated brothers to set apart from the paternal property the expenses of the initiation of uninitiated brothers and sisters before dividing the paternal property, to the father's self-acquired properties and this attempt to restrict these texts to the self-acquired property of the father has, in my opinion, wholly failed. In fact, Narada says that if no wealth of the father exists, the ceremonies of uninitiated brothers must, without fail, be defrayed by the brothers already initiated contributing funds out of their own private wealth. Thus when the initiated brothers are bound even in the absence of any property inherited by themselves to spend money for the samskaras of their uninitiated brothers, it is impossible to hold that they are not bound to meet those expenses out of the property which they inherit from their father as ancestral estate.

14. We now come to the question as to what are the samskaras of uninitiated brethren, the expenses of which have to be first set apart from the inheritance before it is divided among all the sons. (Formerly sisters also had shares in the inheritance along with their brothers and the texts about expenses of initiation refer to both uninitiated brothers and sisters). Brihaspati's text clearly points to the samskaras in question, viz., those which the brothers initiated by their father had to perform for their brothers and sisters whose initiation had been left incomplete by the father at his death, such initiations which are morally obligatory on the father being rounded up by the upanayana ceremony. His text is as follows: 'For younger brothers, whose thread investiture, etc., ceremonies have not been performed, their elder brothers shall perform them out of the collected wealth of their father.' If the expenses of the marriage samskara were also intended to be set apart before partition, that samskara would have been mentioned in preference to the thread investiture ceremony. The word 'dvijatisamskara' as used in the Shrimad Bhagavatam and other sacred books, is intended to apply only to that important samskara which initiates the Hindu into his caste, viz., the upanayanam ceremony. It is well-known that females also, according to the shastras, had the upanayana samskara performed in former ages just like males though now the vivaha samskara has become practically the only samskara for females. But even now, at the time of the vivaha samskara, most of the previous samskaras are rapidly gone through for females. The Smrithi Chandrika is clearly of opinion that the ceremonies contemplated by Narada's text commence with Jatakarma and end in Upanayana. Now the samskaras are variously numbered from 8 to 48 and even more (see also Jagannatha, Introduction, page 30). The Savitri or the ceremony of investiture is the seventh when numbered from Jatakarma according to the Samaskara Ratnamala and the eighth or tenth when numbered from Garbadanam according to the other works. Marriage or Vivaham comes as the fourteenth or sixteenth ceremony. That the marriage of males is not considered an indispensable samskara is clear to me after a pusal of several of the ancient shastris books. The late Diwan Bahadur Raghunatha Rao, a very learned, accurate, and unprejudiced Sanskrit scholar, has in my opinion, conclusively shown in his works that marriage both for males and females is optional and not obligatory. The late Krishnaswami Ayyar, J., while inclined to attach great importance to the Vivaha ceremony [see Kameswara Sastri v. Veeracharlu I.L.R. (1911) Mad. 422] admits that the Jabala Upanishad, Manu, Yagnavalkya and Mitakshara lay down that a Hindu can go straight from the Brahmacharya stage after upanayana to the Sanyasashrama stage without having been a Grihastha and having had the Vivaha samskara if he has conquered his animal passions during the Brahmacharya stage. (Yad Shareva Viramet Tad Shereva Pravrajet), See also Mitakshara, Prayaschitta Kandam on Yati Dharma. We have the well-known text of the Bhagavatham that animal sacrifices, intoxicating liquor sacrifices and marriage are not obligatory samskaras but are intended only for those who have not conquered their desires for flesh, spirituous liquors and sexual gratification:

Loke Vyavayamishamadha Siva Nityastu Jantoh nahi tatrachodana Vyavasthitistasu Vivaha Yagna Sura Grahair Asu nivritti rishta.

15. The texts which praise the Grihasthasramam as supreme are only what are known as arthavada and laudatory texts intended to encourage the married house-holder to perform his duty of maintaining the other three Ashramas and were clearly not intended to really lay down that the Grihasthashrama is superior to the other Ashramas. In fact, in the Bhagavatham and other religious works and also in the smrithis, the married stage is in several places despised as the Jaghanyasrama and it is clearly laid down that apart from the exceptional cases of Guana Sanyasis like Janaka, a man who dies as an ordinary Grahasthasbramee will be merely moving round and round in the three lower worlds, whereas the Naishtika Brahmacharya, the Vanaprastha and the Sanyasi alone can go to the higher four worlds, after passing to which there is no further (voluntary return to the rounds of births in the three lower worlds. Marriage is only a Vikalpa vidhi and it is not a Nitya or Apurva vidhi. It is either a Niyama vidhi or is only a Parisankhya vidhi. Even Chandavarkar, J., in Sundarabai v. Shivnarayana I.L.R.27(1908) Bom. 81, does not state that marriage is always obligatory but only that it might 'become obligatory' in the cases and for the reasons he has set forth (page 93, 1st line). As regards the texts quoted by Krishna-Swami Ayyar, J., which ordain that a man should discharge his three (or five) debts and that he should pro-create sons by marriage to discharge one of those debts, viz., the debt due to his Pitris, there are numerous passages in the shastras to show that when real Vairagya is obtained and real undivided devotion to the Supreme Lord, the debts to Devas, Rishis, Bhootas, Aptas, Fellowmen and Pitris all become nonexistent and completely discharged and that on the very day such Vairagya and devotion are obtained, that very day one should give up the wordly life. The learned Judge himself does not stake that marriage is a compulsory Samskara even for the man who is not fib to pass at once to the vanaprastha stage but that it is 'practically compulsory.' Kameswara Sastri v. Veeracharlu I.L.R. (1911) Mad. 422. The Bhagavatham says:

Devarshi Bhootapta Nrinam Pitrinam na Kinkaro nayam rineecha Rajan Sarvatmana Yassaranam saranyam gato Mukundam parihritya karmam.

16. Now according to the texts (see especially Narada quoted in the Smrithi Chandrika, page 59 of Mr. Krishnaswami Ayyar's translation) which require the initiated brothers to perform the ceremonies of their uninitiated brethren, it is clear that it is only those ceremonies which the deceased father was expected and bound to perform for his sons if he was alive that the initiated brothers had to perform in the place of their father for their uninitiated brothers. 'What is left of the' father's property after the father's obligations have been discharged, let the brothers divide.' Now what are those ceremonies? Manu says: 'Let the father himself perform the eight ceremonies which perfect the second birth of a twice-born man like the ceremony on conception.' Thus, it is clear that the father is under an obligation to perform only up to the Upanayana ceremony the samskaras to be performed for his son. Vivaha is a ceremony which is performed after a man attains his majority and depends on his own will and option. It is, therefore, perfectly clear to me that the marriage samskara is not one of the samskaras which the initiated brothers have to perform for their uninitiated brothers and the expenses of the future marriage ceremony of the uninitiated brother is therefore not intended by the texts to be deducted out of the patrimony before it is divided. I am glad to have for the above view, the support of that very learned Judge, the late Krishnaswami Ayyar, J., who has said in Kameswara Sastri v. Veeracharlu I.L.R. (1911) Mad. 422, that 'there is also another reason for separating marriage from the Samskaras that precede it, for, as pointed out at page 300 of the Digest it is not a Samskara which a father does for the sons as he does in the case of the preceding Samskaras but one in which the son himself participates as the active agent.' The learned Judge further on says 'The marriage of an unmarried brother is certainly not a duty cast on the married brothers where there is no patrimony.' The texts of Narada make the initiated brothers perform the samskaras of uninitiated brothers even out of their own acquisition if there is no patrimony and as the samskaras so made obligatory on the initiated brothers are the same whether there is patrimony or not, if such samskaras cannot include the marriage samskara in the one case, they cannot include it in the other case also, In the case of uninitiated sisters, as the marriage ceremony has now taken the place of their Upanayana, the marriage expenses must be met or set apart but in the case of uninitiated brothers, I think we must stop at the Upanayana ceremony as even the Smriti Chandrika does not venture to go beyond the expenses of the Upanayana ceremony as obligatory on the patrimony. If we go as far as the optional sacrament of marriage, why should we not go to the thirty and odd sacraments which follow the marriage sacraments and where are we to stop? In these days when it is deemed essential to postpone the marriages of boys till their education is completed, I am not prepared to allow any monies for the future marriage of a minor boy to be set apart several years before the marriage is likely to take place. The making of such provision will be the holding out of a temptation to the boy and his widowed mother to hasten the marriage before he completes his education and such early marriages are utterly opposed to the shastras. The question decided in Kameswara Sastri v. Veeracharlu I.L.R. (1911) Mad. 422, was that the expenses of the marriage of a male Hindu are expenses incurred on account of 'family necessity' because they are reasonable and proper expenses. That question is quite a different question from that which we are now considering, viz., whether the expenses of such marriage ought to be set apart at a division among the brothers as the expenses of an obligatory samskara under the texts of Narada and other sages. The expressions 'family necessity' and 'family benefit' have always been liberally construed to include the expenses for purposes usually and reasonably incurred according to the status of the particular family and that question was recently decided in Gopalakrishnaraju v. Venkatanarasaraju (1912) M.W.N. 903 by a Full Bench of which I was a member but the present question as to the expenses of what samskaras have to be set apart at partition has no connection with the question decided by the Full Bench, the decision of the Full Bench merely affirming that where the marriage had taken place and where therefore the vivaham sacrament of a male was found to have been obligatory owing to the unfitness of that male member for the life of a Naishtika Brahmacharya or of a Sanyasin the reasonable expenses which had been incurred for his marriage were proper family expenses which would support the alienation of family property made for meeting such expenses. I wish to add that in these times when the giving of varasulkam is so rampant, it is very problematical that any expenses need at all be incurred for a boy's marriage when he comes of marriageable age and on that ground also I should hold that the allowance of Rs. 150 to the minor plaintiff for his marriage expenses is based on a remote speculative necessity. In this case, the plaintiff is only a boy five years old and to speculate about his marriage and his marriage expenses now seems to me to be a great deal premature. In the result, I would modify the Lower Court's decree by deleting the provision made in it to the extent of Rs. 150 for the plaintiff's marriage; plaintiff being a child five years old, his marriage, if it takes place at all in future, having to be postponed till he is 24 according to the shastras, it being problematical whether his marriage instead of entailing expense may not even be a source of pecuniary profit to him when it occurs and the Hindu Law contemplating the expenses up to Upanayanam alone being set apart at the time of division for the benefit of uninitiated brothers. In other respects, I agree with the judgment of my learned brother and I agree in the order proposed by my learned brother to be passed in this case as regards the question of the fifth defendant's maintenance.

Sundara Ayyar, J.

17. As my learned brother does not agree with my view on the question of the plaintiff's right to have provision made to defray the expenses of his marriage, we refer under Section 98 of the Code of Civil Procedure for the decision of a third Judge the question whether, when one only of two co-parceners in a Hindu family has been married at the family expense, is the other co-parcener, a minor, entitled at a partition of the family property to have provision made for his marriage out of it?

18. This Second Appeal coming on for hearing on Thursday the 5th February 1914 under the provisions of Section 98 of the Code of Civil Procedure as per order of Sundara Ayyar and Sadasiva Ayyar, JJ., who differed on a point of law, dated 30th August 1912, before Spencer, J., for reference and the case having stood over for consideration the Court expressed the following

Spencer, J.


19. The authorities for the proposition that marriage for Hindus is an obligatory samskara quoted in the judgment of Sundara Ayyar, J., namely, Kameswara Sastri v. Veeracharlu I.L.R. (1911) Mad. 422, Sundrabai v. Shivnarayana I.L.R. (1908) Bom. 18, Gopalakrishnamraju v. Venkatanarasaraju (1912) M.W.N. 903 and the books on Hindu Law by West and Buhler, page 781, Sarkar, page 245 and Strange, volume 2, page 286, are so weighty that I cannot usefully add anything in my own words to what is contained therein. I therefore take it that it is settled law that the reasonable expenses of performing the marriage of a male member of a co-parcenary, if already incurred out of family funds, are necessary expenses which must be treated as binding on the other co-parceners.

20. The further question to be decided is, supposing that the separation of a minor's estate takes place by partition from the family estate before his marriage has been performed, whether provision should be made for an expense that may never be actually incurred for some reason or other, such as the minor remaining unmarried, dying young, or passing to the sanyasi asramam (ascetic stage) without passing through the grihasthasramam (married stage). This question arises out of modern conditions. In the ancient history of the Hindu joint family, I imagine that it must have been 'most unusual to have partitions effected before the parents died. In the event of a minor who has obtained partition of his share dying without issue, his estate will revert to his heirs according to the rules of Hindu succession, and this will include the unspent provision, if any, made for his marriage, so that the other members of the family will not lose unfairly by making provision for the minor's marriage beforehand. Instances of a man becoming a sanyasi without passing through the stage of grihasthasramam appear to be so exceptional that it seems hardly necessary at partition to contemplate the possibility of the abnormal happening. In this connection, I may quote the words of Krishnaswami Ayyar, T., in Kameswara Sastri v. Veeracharlu I.L.R. (1911) Mad. 422. He says: 'Except for him who has thus qualified for entry direct into other Asramas than that of house-holder the stage of house-holder is practically compulsory; 'and' Both the commentators of Manu and the commentators of Yagnavalkya have come to the conclusion after a full discussion of Sruti and Smriti texts that the stage of house-holder is obligatory on all the twice-born. But to those who have pursued the path of non-attachment, Naishtika Brahmacharya or perpetual studentship or entry from studentship into the stage of the hermit or ascetic direct is open.' Moreover, when a Hindu renounces worldly affairs, it is usual for him to relinquish also his property in favour of other members of his family. The considerations of expediency which appear in the judgment of Sadasiva Ayyar, J., do not much appeal to me, unless they can be supported by the sacred texts or by established custom. For such considerations there is generally much to be said on the other side to balance or outweigh them. The learned Judge's observation that a provision for marriage will serve as a temptation to the boy and his widowed mother to hasten the marriage before he completes his education and that such early marriages are utterly opposed to the shastras does not seem to me to be a sufficient reason for altogether withholding such a contribution from family funds. Principles cannot be created out of particular cases in which unfortunate results have ensued. In some cases, if a minor's guardian is his mother, there may be a risk of the minor being pushed into an improvident early marriage. In other cases, there may be some security that marriage will be deferred to reasonable age. I doubt whether the evil of early marriages can be prevented by judicial pronouncements anticipating a change in popular opinion. Again, the learned Judge remarks that the practice of varasulkam being on the increase may obviate any expenses being incurred on the boy's side. So long as the boy's parents have, as a general rule, to incur some expenses at his marriage, I should hesitate to describe the allowance for marriage expenses as a 'remote speculative necessity.' In the family concerned in this case the first defendant has been married out of family funds; it is probable that the plaintiff will marry and it is equitable that, when he does, ho should be treated like his brother.

21. Turning to the authorities, Sadasiva Ayyar, J., refers to the texts of Narada which make the initiated brothers perform the samskaras of uninitiated brothers even out of their own acquisition, if there is no patrimony. He proceeds to argue that;, as the samskaras so made obligatory on the initiated brothers are the same whether there is patrimony or not, if the marriage samskara is not included in the one case it cannot be included in the other case also. He would set apart the marriage expenses of uninitiated sisters for the reason that the marriage ceremony has now taken the place of Upanayanam, but in the case of uninitiated brothers he would stop at the Upanayanam ceremony. For this view he quotes the Smriti Chandrika. In Mr. Krishnaswami Ayyar's translation, Chapter 4, verse 40, Narada states, 'For those whose initiatory ceremonies have not been regularly performed by the father, those ceremonies must be completed by the brethren out of the patrimony,' Verse 41 goes on, 'If no wealth of the father exists, the ceremonies of brethren must, without fail, be defrayed by the brothers already initiated contributing funds out of their own portion.' Verse 42 says, 'The ceremonies contemplated by this text commence in Jatakarma and end in Upanayana.' In the next verse the learned author observes that marriage is not one of the ceremonies that must, without fail, be performed, as the law permits the life of a perpetual student (Naishtika Brahmachari). As regards this text, Chandavarkar, J., in Sundrabai v. Shivnarayana I.L.R. (1908) Born. 81, remarks, 'it (this text) deals only with brothers. And, secondly, even as to them, it deals only with the case of brothers who have no joint estate, and therefore, are not bound by any mutual obligations incidental to a co-parcenary family;' and at page 87 he observes, 'the word used for 'ceremonies,' whether as applied to brothers or to sisters, is samskaras. In the case of sisters, it can have no meaning if marriage be excluded from it. And if marriage be included in the use of the word with reference to sisters, it must be understood as having, been used in the same sense with reference to brothers also, since both brothers and sisters are mentioned in the same connection and the same word is used as to both.' Krishnaswami Ayyar, J., in Kameswara Sastri v. Veeracharlu I.L.R. (1911) Mad. 422, states, 'There can be no doubt that the Smriti Chandrika is no authority for the position that marriage is not an obligatory samskara.' This is sufficient to show that the authority of the Smriti Chandrika upon which the appellant's pleader relies cannot be invoked for the purpose of showing that the samskara of marriage creates no obligation upon brothers, who have ancestral property to meet the costs of the marriages of the other members of the family.

22. In the judgment of Sadasiva Ayyar, J., vivaha is referred to as ceremony performed after the man has attained his majority and depends on his own will and option. It may be true that a man who has overcome his passions can attain salvation without marriage, but he does not necessarily become Unasrami or Vratya (out-caste) if he has, in due course, entered the other asramas in order and has remained unmarried.

23. Whether omission to perform the samskara of marriage would work forfeiture of caste or status is not in my opinion the true test to be applied for determining whether the expenses of marriage are or are not debts of family necessity which must be provided for. As observed by Sundara Ayyar, J., 'There can, at any rate, be no doubt that marriage is regarded as a most proper ceremony for every Hindu. This is sufficient to justify the plaintiff`s claim for a provision for his marriage.' We may safely be guided by what is considered normal and proper. I would, therefore, be inclined to take the view that marriage expenses may be necessary expenses,' although salvation can be obtained without marriage. It does not follow that, because a man, in exceptional circumstances, can attain salvation without passing through the stage of grihasthasramam, marriage which is the introduction to that stags is not a necessary ceremony for the ordinary man. The ceremonies for the performance of which immoveable properties can be alienated by the manager do not include only those for the non-performance of which forfeiture of caste is the penalty. Kameswara Sastri v. Veeracharlu I.L.R. (1911) Mad. 422, This decision and that in Gopalakrishnamaraju v. Venkatanarasaraju (1912) M.W.N., 903, and in Sundrabai v. Shivnarayana I.L.R. (1908) Bom. 11, while laying down that the marriage expenses already incurred are binding on the members of a Hindu family, incidentally decided also that marriage is obligatory on Hindus who do not desire to adopt the life of a Sanyasi.

24. The appellant's pleader contends that the above text of the Smriti Chandrika is in his client's favour and that there is nothing to the contrary in any other of the ancient writings. He has also called my attention to the decision in Govindarazulu Narasimham v. Devara Bhotla Venkata Narasayya I.L.R. (1904) Mad. 206. This decision appears to have been practically overruled by the later decision Kameswara Sastri v. Veeracharlu I.L.R. (1911) Mad. 422, and Gopalakrishnamaraju v. Venkatanarasaraju (1912) M.W.N. 903; I have shown that the Smriti Chandrika is not really in his favour.

25. In Colebrooke's Digest of Hindu Law, Book V, Chapter 3, Section 123, the saying of Yagnavalkya appears thus: 'For any of the brothers, whose investiture and other ceremonies had not been performed by the father, those ceremonies shall be performed by brothers, of whom the sacraments have been completed.' On referring to the text, the literal translation of the Sanskrit is, 'samskaras are to be done for the uninitiated by those fully initiated.' Thus no mention is made in the text of Upanayanam as distinct from other samskaras. Admittedly how over marriage is a samskara, and there is nothing to show that it was intended to be excluded here. In Stokes' Hindu Law, Mitakahara, Chapter I, Section 7, verses 3 and 4, I find, 'If any of the brethren be uninitiated when the father dies, who is competent to complete their initiation?.... Uninitiated brothers should be initiated by those for whom the ceremonies have been already completed. By the brethren, who make a partition after the decease of their father, the uninitiated brothers should be initiated at the charge of the whole estate.' Under this, there is an annotation by which all the initiatory ceremonies are interpreted by Balambhatta as including marriage. But Balambhatta is not mentioned in Mr. Mayne's Hindu Law as an authority in the South of India, and in Bhagwan v. Warubai I.L.R. (1908) Bom. 300, Chandavarkar, J., remarks that Balambhatta is not regarded by Hindus in the Bombay Presidency as an authority to be accepted without question in the interpretation of the Mitakshara. On the broad footing that marriage is a samskara, that it is not usual to omit it, and that it is necessary that samskaras should be performed out of family funds,; when such exist, I would allow this charge.

26. Moreover, the decisions quoted by me at the outset are to the effect that marriage is an obligatory ceremony; and Sarkar, West and Buhler in their works on Hindu Law and Steele's Law and Customs of Hindu Castes, page 404, declare that the expenses for the marriage of unmarried co-sharers should be set apart at partition.

27. I consider that the opinion of Sundara Ayyar, J., in this Appeal is correct and supported by authority.

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