Pandrang Row, J.
1. This appeal arises out of a suit brought by one Sivanagalingam Pillai against his father-in-law and mother-in-law for recovery of certain, jewels and cloth belonging to his deceased wife, who died on 10th January 1931 at Cuddalore. Naturally one of the allegations in the plaint was that the plaintiff's marriage with the daughter of the defendants was in the Brahma form and this allegation was denied by the defendants, according to whom the marriage was in the Asura form in spite of the fact that it was admitted by the defendants, that a dowry of Rs. 3000 was agreed to be paid in respect of the marriage and was actually paid, Rs. 1600 in the shape of jewels and the balance in cash at the time of the marriage. The contention of the defendants that the marriage was nevertheless in the Asura form was bated mainly on the ground that a parisam or present of Rs. 101 had been paid at the time of the marriage according to the custom of the caste by the plaintiff's brother-in-law on behalf of the plaintiff into the hands of the bride's father. This it was contended by the defendants in the written statement was payment of consideration for the bride. It was also alleged that a cloth worth about Rs. 65 was also given at the same time. It was further alleged that it had been agreed also before the marriage that all the expenses of the marriage should be borne by the plaintiff, and that accordingly the marriage was celebrated in the house of the plaintiff at his own cost. These are the facts which were relied upon in support of the contention of the defendants that the marriage was in the Asura form, namely the presents of Rs. 101 in cash and a cloth, and the agreement that the expenses of the marriage should be borne by the plaintiff.
2. Unfortunately instead of the Contentions an the suit being fully tried after taking all the evidence the parties had to adduce, the learned Subordinate Judge appears to have thought that it was possible to determine the suit entirely on the bare statement made by the plaintiff himself, on 23rd March 1933, which according to him was sufficient to show that the marriage was in the Asura form. He found accordingly against the plaintiff and dismissed the suit. On the same material the District Judge on appeal was of the same opinion and dismissed the plaintiff's appeal. A second appeal by the plaintiff had the same result. And in the present Letters Patent appeal, the only point for us to determine is whether in the light of the statement of the plaintiff referred to above the finding that the marriage was in the Asura form is according to law. It must be made perfectly clear at the same time that any decision that may be pronounced in this appeal will not finally decide any issue that arises in the suit, because the present decision can only proceed on the statement made by the plaintiff and on no other material. That statement has been extracted in the judgments, the material portions of which are as follows:
I am a Vellala by caste. In my caste the usage is that the marriage takes place in the bridegroom's house unless he is too poor to bear the expenses. My expenses connected with the marriage amounted to about Rs. 2400. The expenses included music, dancing, feeding of guests, presents to the purohits, and all other items. The whole expenditure was borne by me and no contribution was taken from the bride's party. The marriage wholly took place at my house and at my expense.
3. Along with this statement it must be borne in mind that the payment of a dowry, Rs. 3000, is admitted by both parties. Now the question is whether in view of these facts it is possible to say that the marriage was in the Asura form. As stated by Cornish J. in the judgment under appeal the distinctive mark of the Asura form of marriage is the receipt of pecuniary consideration or bride price by the father of the bride for giving his daughter in marriage. This definition, so to speak, of the Asura form of marriage has not been taken objection to by either side and in fact this point is settled beyond all doubt. Where the bride is given in exchange for wealth the marriage is considered to be in the Asura form. On the other hand, so far as our presidency is concerned, all marriages among Hindus are presumed to be in the Brahma form unless it is proved that they were in the Asura form; in other words, it is incumbent on the party who alleges that a particular marriage was in the Asura form to prove that bride price was paid in respect of the marriage by the bridegroom or his people to the bride's father.
4. In the present case, apart from the payment of the customary presents of Rs. 101 in cash and a cloth it is not alleged that anything was paid by the bridegroom or his people to the bride's father. These customary presents would not necessarily amount to a payment of bride price. In any case, it was not on this ground that it has been decided by the Courts below that the marriage was in this case in the Asura form. That decision was based entirely on the fact that the marriage expenses were entirely met by the bridegroom in this case and on the custom referred to in the plaintiff's statement. Reliance was placed in this connexion on the observations of Ramesam J. in the cases reported in Rathuathauni v. Somasundara Mudaliar (1921) 8 A.I.R. Mad 608 and Samu Asari v. Anechi Ammal (1926) 13 A.I.R. Mad 37. It was these observations that appear to have governed the decision of the Courts below as well as that of Cornish J. In Rathuathauni v. Somasundara Mudaliar (1921) 8 A.I.R. Mad 608 there was an actual payment of Rs. 200 to the bride's father and it is stated by Ramesam J. that it was clear from the evidence and the pleadings that this payment of Rs. 200 for the expenses of the marriage was a term of the contract of marriage. In Kanhaiya Lal v. Mt. Mahadei : AIR1932All550 also it was found that a certain sum of money was paid by the bridegroom to the bride's father specifically as a contribution towards the expenses of the marriage. It would be enough for our present purpose to say that the facts of the present case as contained in the plaintiff's statement are quite different. In the first place there was no payment of any money towards the expenses of the marriage by the bridegroom to the bride's father; nor is there any evidence at present to show that the bridegroom's meeting the expenses of the marriage in this case was the result of any contract between him and the bride's father and was not at his own will and pleasure.
5. It is however argued that the existence of the custom referred to by the plaintiff has the effect of converting the marriage which is otherwise clearly in the Brahma form into one of the Asura form. I am unable to follow this reasoning. The custom in the first place is most vague and uncertain, and as is well known, the expenses of a marriage are a very uncertain factor which may range from a few rupees to many thousands of rupees, and even according to the plaintiff the custom is for the bridegroom to meet the expenses of the marriage unless he is too poor. A custom of this kind cannot be regarded as having any effect on the nature of any particular marriage. It has really no bearing on the question of law as to whether a particular marriage is in the Brahma or in the Asura form. A custom regarding the expenses of marriages is not necessarily a custom which has the force of law. Ramesam J. appears to have relied to some extent on a statement made in Steele's Law and Custom of Hindu Castes to the effect that in Brahma marriages the charges are incurred solely by the girl's father. I do not think the learned author intended in that passage to give an accurate definition of what a Brahma marriage was, or to lay down that if any portion of the expenses of the marriage was met by the bridegroom the marriage would cease to be in the Brahma form. The essence of the Brahma form of marriage is the gift of the bride without receiving any consideration therefor to the bridegroom in marriage; and when along with the bride jewels are also given it is obvious that the marriage must he regarded as one in the Brahma form. It is a well-known fact that, whatever the custom is, the bridegroom and his people also spend considerable sum of money in respect of the marriage whenever they can afford it. Such expenditure obviously does not convert the marriage which is otherwise in the Brahma form into one which is in the Asura form. I have no doubt that in this particular case the reference to the custom in the plaintiff's statement cannot be relied upon in the least to show that the marriage in question was in the Asura form. It follows therefore that the finding to the effect that the marriage was in the Asura form, based as it is entirely on the plaintiff's statement of March 1933, cannot be supported in law; it is, in short, contrary to law. The finding must therefore be set aside and the suit remanded to the first Court for fresh disposal according to law after taking all the evidence adduced by the parties. The plaintiff-appellant will be entitled to have his costs in all the Courts up-to-date from the respondents except the costs in the first Court which will be within the discretion of that Court.
Abdur Rahman, J.
6. I concur. There appears to be no basis for the assumption that the bride's father is not only liable to bear the expenses incurred or to be incurred by him on the marriage of his daughter, but is also required to pay any sum, according to what has been termed by the counsel for respondent as a social custom, towards the expenses which the bridegroom or the other members of his family may take it into their heads to spend. The custom pleaded in this case would be so unreasonable, variable, and uncertain that it could not be enforceable in a Court of law. In any case1 it is well established in this Presidency that, unless it be proved to the contrary, every marriage has to be presumed to be in Brahma form. One must therefore try to ascertain if the ingredients of an Asura form of marriage have been established in this case. If a party wishes to assert that the marriage was Asuric in form, he must establish that some price was paid for the bride in pursuance of either of an express or implied contract to the bride's father or on his account. There is nothing on the record to establish this and the appeal must therefore be accepted.
Pandrang Row, J.
7. This appeal has been taken up once more for the purpose of deciding the question of refund of court-fee paid on the memoranda of appeal in this litigation. So far as the court-fee paid on the memorandum of appeal in the Letters Patent appeal is concerned; there can be no doubt that refund can be claimed as of right Under Section 13, Court-fees Act. A certificate regarding this court, fee will therefore issue. As regards the claim for a certificate in respect of the court-fee paid on the memoranda of appeal in the second appeal as well as in the first appeal the words of Section 13, Court-fees Art do not appear to contemplate the grant of a certificate in respect of such court-fee. It is clear from that section that the certificate is to be given only by the Appellate Court when it remands the suit under appeal for a second decision by the lower Court and that too for the amount of fee paid on the memorandum of appeal. It does not contemplate the grant of certificates in respect of court-fee paid in the lower Appellate Courts. The question has been so decided in Kanhaiya Lal v. Mt. Mahadei : AIR1932All550 by a Bench whose decision was affirmed by a Full Bench of the same High Court reported in Mt. Kaul Pati Kuer v. Kashi Prasad Singh : AIR1934All106 . We see no sufficient reason to take a different view. We are therefore unable to accede to the request that a certificate should be given in respect of the court-fee paid in second appeal and in first appeal in this case.