Patanjali Sastri, J.
1. This is an appeal brought by the defendant from a decree of the District Court of West Tanjore made in favour of the respondent in a suit for recovery of the plaint mentioned jewels or their value Rs. 1,400 with interest. The jewels belonged to one Sundarambal who was the daughter of the appellant and the wife of the respondent. She died without leaving any issue and the dispute relates to the respondent's right to succeed to the jewels as her heir. This depends, of course, under the Hindu law, upon the form of Sundarambal's marriage to the respondent. The trial Court held that it was in the asura form and dismissed the respondent's claim. On appeal, the learned District Judge came to the conclusion that it was in the Brahma form and accordingly decreed the suit. The appellant challenges the correctness of that conclusion in this appeal.
2. It is well settled that prima facie every marriage under the Hindu law must be presumed to have taken place according to the Brahma form. This presumption can, of course, be rebutted by evidence and it is sought in this case to rebut it by showing that the appellant, before giving Sundarambal in marriage, stipulated for a payment of Rs. 500 from the respondent as bride price. The respondent admits the payment of Rs. 500 to the appellant, but his case is that it was paid not for the appellant's own benefit but for the specific purpose of making jewels for the bride and they were accordingly made. This case was accepted by the trial Court and the finding was not challenged in the Court below or before me in this second appeal. The trial Court, however, took the view that the marriage was in the asura form because the payment was not a voluntary payment by the bridegroom for making ornaments for the bride but was the result of bargain and stipulation. According to the learned District Munsif, a Brahma marriage involves a pure gift of the girl (kanya danam), and though a voluntary gift of money or jewels to the bride out of courtesy or affection may not be inconsistent with such form of marriage, a stipulation for such gifts as a condition of giving the girl in marriage, though intended entirely for the benefit of the bride, makes it an asura marriage as understood in the Hindu law. This view has been pressed before me by Mr. T.M.M. Krishnaswami Aiyar for the appellant and the question is whether it is well founded.
3. It has been held, and this is not disputed by Mr. Krishna-swami Aiyar that gifts of jewels or money made to the bride do not make the marriage an asura marriage (Kailasanatha Mudaliar v. Vadivanni) (1934) 69 M.L.J. 142 : I.L.R. 58 Mad. 488, but he maintains that even such gifts if they are not purely voluntary but are made in fulfilment of stipulations in that behalf, bring it within that category. There is no direct decision on this point, at any rate none was cited at the bar, but the principles applicable are, to my mind, perfectly plain. Marriage, according to Hindu Shastras, is a holy sacrament and the gift of a girl to a suitable person is a sacred duty enjoined upon the father which, if duly performed, is held to confer upon him great spiritual benefit. Manu laid down:
No father learned in the Shastras shall receive even a particle (of money) for giving his daughter in marriage. By receiving such money out , of avarice he becomes a seller of his offspring.(Chapter III, Verse 51).
The Rishis thus discountenanced a father exploiting his power of disposal of his girl in marriage for his own pecuniary benefit in disregard of his parental duty of bestowing her on a duly qualified person. The vice of the discredited asura form consists therefore in the father out of his greed turning his fiduciary obligation into a source of profit for himself thereby transforming a sacrament into a commercial bargain. Such being the object and principle underlying the prohibition of the asura form, there is no apparent reason why a stipulation by the father for a dowry for the girl as a condition of giving her in marriage, should be viewed as involving a breach of his parental duty and amounting to a sale of his offspring (apathya vikraya). On the other hand, verse 54 of the same Chapter of Manu indicates that the acceptance of a dowry from the bridegroom does not turn the marriage into a sale. It says:
When the sulka given for the damsel is not taken by the kinsmen for their own use, there is no sale. It is only honouring (arhanam) the bride and is totally free from sin.
Medhatithi, in his commentary on this text, points out that the receipt of money or money's worth for the benefit of the girl (kanyarthe) does not amount to her sale, and is desirable as it tends to enhance her self-esteem and also raises her in the estimation of others, and concludes with the observation that receipt of a dowry for the girl (kanyartham dhanagrahanam) is prescribed by thus stating the good arising from it (artha-vadena). This would seem to clinch the matter, for if the receipt of a dowry for the girl is to be regarded as a thing prescribed (vidhiyate) by the Shastras, it would be part of the father's duty to obtain it for her if possible, and a stipulation for its payment by the bridegroom cannot have the effect of making the marriage an asura which is, as already observed, essentially founded on a breach of parental duty.
4. Reference was made to the decision in Kailasanatha Mudaliar v. Vadivanni (1934) 69 M.L.J. 142 : I.L.R. 58 Mad. 488, where Varadachafiar, J., delivering the judgment of the Court observed:
The form or value of the jewel was not even the subject of a bargain, but merely left to the pleasure of the bride-groom's father. This can in no sense be called 'bride-price'.
Here the learned Judge was merely emphasizing that in no view was it possible, in the circumstances of that case, to hold that the marriage there in question was in the asura form, and I cannot regard the passage as involving a 'decision that a bargain or a stipulation made with the bridegroom in regard to the present of jewels to the bride turns such present into a 'bride price' and makes the marriage an asura, especially as the learned Judge has stated in the sentence next following that the distinctive feature of the asura form is 'the giving of money or money's worth to the bride's father for his benefit or as a consideration for giving the girl in marriage.' Mr. T. M. Krishnaswami Aiyar argued that the appellant had intended to make jewels for his daughter himself and that by stipulating for and receiving the sum of Rs. 500 from the respondent, he was relieved from the expenses of making such jewels and thus indirectly benefited himself, and reference was made to Samu Asari v. Anachi Ammal : AIR1926Mad37 , in support of this argument. I see no force in this contention. In the first place, this was not the case of the appellant at all. He alleged that the money was received only in consideration of his giving his daughter in marriage to the respondent and this has been found to be false. The money, as already observed, was found to have been received by the appellant for the specific purpose of making jewels for his daughter, and I cannot agree, in such circumstances, that even if the appellant had intended to present his daughter with jewels and abandoned the idea subsequently in view of the payment received for the purpose from the respondent, that would affect the character of the marriage. The appellant was under no obligation to make any jewels for his daughter before the receipt of the money, and there can be no question of his being relieved from any obligation by such receipt. In the case in Samu Asari v. Anachi Antmal : AIR1926Mad37 , the father of the bride received a contribution from the bridegroom's party towards the expenses of the marriage, and Ramesam, J., held that as the father was benefited by such contribution in that he was relieved to that extent from defraying such expenses himself, the marriage was one in the asura form. This view has been criticised in the latest edition of Mayne's Hindu Law as not really warranted by the Hindu law texts, and the point may have to be reconsidered when it arises. The decision has no application to the facts of the present case which are entirely different.
5. For the reasons indicated, I have no hesitation in holding that the marriage of Sundarambal to the respondent was in the Brahma form and the respondent is her heir. The second appeal is accordingly dismissed with costs.
6. Leave refused.