DEVULAPALLI KAMESWARA SASTRI Vs. POLAVARAPU VEERACHARLU

JUDGEMENT

(1.) I entirely agree is the conclusion reached by my brother Krishnaswami Aiyar in the learned and instructive judgment which he is about to read. I have nothing to add. The decree of the Subordinate Judge will be set aside as regards the third defendant, and that of the District Munsif will be restored. There will be no coats. Krishnaswami Ayyar, J.

(2.) This second appeal has been preferred against the decree of the Subordinate Judge disallowing the plaintiff's claim against the third defendant's share in the mortgaged property. The mortgage was executed by the first defendant, the father, and the second defendant, the adult son, while the third defendant a minor was represented by the father, who also signed the document as his guardian. The money was borrowed for the marriage expenses of the second defendant. The defendants have been dealt with as Sudras in this case, and no question has been raised as regards the correctness of that view. It is contended that the Subordinate Judge is wrong in holding that the marriage expenses of the second defendant are not under the Hindu Law a justifiable necessity for the borrowing of money and the execution of the mortgage. The powers of a Hindu manager of family property have been expounded in the judgment of Lord Justice Knight Bruce in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856) 6 M.I.A. 393. At page 423, his Lordship says "the power of the manager for an infant heir to charge an estate not his own, is, under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate." The need above referred to is afterwards spoken of at page 424 as "a sufficient and reasonably credited necessity." Bond fide and reasonable enquiry may be sufficient to validate the charge though the actual necessity is not made out, We may at once dismiss from consideration, so far as the present case is concerned, the justification of benefit to the estate. In the case of the father, the discharge of an antecedent debt is in addition a sufficient ground to justify alienation, As regards the widow who has succeeded to her husband's estate her power to charge it so as to bind her rever-sioners may extend to loans contracted for the performance of religious ceremonies or pilgrimages for the benefit of her husband's soul. As the present is not a case of an antecedent debt, the validity of the mortgage as regards the third defendant's share must be tested with reference to the consideration whether it was a case of need. In Suraj Bunsi Koer V/s. Sheo Proshad Singh (1878) 6 I.A. 88, it was held that the alienation would be valid if it was made by the managing member of the family "for legitimate family purposes." See page 101. The need or "the reasonably credited necessity" spoken of in Hunooman Persaud's case has been paraphrased into legitimate family purpose. Necessity therefore is not to be understood in the sense of what is absolutely indispensable but what according to the notions of a Hindu family would be regarded as reasonable and proper. Speaking of the cryptic phrase "legal necessity" Golapchandra Sarcar Sastri in his Hindu Law page 210, observes "the expression legal necessity is very often used, to signify the causes for which, or the circumstances under which, a single member of a joint family, or a like person, having a limited interest in property, is authorised to transfer it so as to pass to the transferee a right to the entire property. It comprises maintenance and support of the family, preservation of the family estate, management of the family business, if any, performance of necessary religious rites such as marriage and the like initiatory ceremonies, exequial rites and Sraddha ceremony,-- and the payment of debts contracted for the above purposes." In the Tagore Lectures for 1884-35 Bhattachatyya says at page 488: "Legal necessity is of various forms. AH the indispensable religious ceremonies, the sacraments, such as marriage and the investiture with the sacred thread, the obsequies, the cremation, the periodical oblations to the manes, the ceremonies customary in the family, the subsistence of the family, the education of the younger members, the payment of the ancestral debts, the giving of presents at particular seasons and on special occasions to the relatives,--these and a thousand other causes of expenditure are constantly cropping up in a fairly prosperous Hindu joint family. All these are in the strict sense of the word, lawful necessity." In Babaji Mahadaji V/s. Krishnaji Devji (1878) I.L.R. 2 Bom. 666, where a sum of money was borrowed to buy a stock of buffaloes with which to resume the business of a milkman, it was held that the debt was contracted to put the father in the way of earning a maintenance and therefore under the pressure of family necessity. Mr. Justice WEST observes at page 669 "Family necessity is an expression that must receive a reasonable construction, and the head of the family and those dealing with him must, in the interest of the family itself, be supported in transactions which, though in themselves diminishing the estate, yet prevent or tend to prevent still greater losses. A reasonable latitude, too, must be allowed for the exercise of a manager's judgment, especially in the case of a father, though this must not be extended so as to free the person dealing with him from the need of all precaution, where a minor son has an interest in the property." Judged by these principles it is first of all difficult to suppose that the marriage of the second defendant was not a legitimate family purpose. I put it to the respondent's vakil whether he contended that having regard to the age of the second defendant at the time of the marriage it was not a purpose for which the father could legitimately incur expenditure or contract a loan. He disclaimed any intention of resting his case on that ground. Dismissing therefore from consideration any question of propriety based on the ground of age, we are confronted with the broad question whether the father was justified in borrowing money for the marriage of his son while the income of his property was insufficient to meat the expenditure. In Mahadeva Pandia V/s. Rama Narayana Pandia , which was a case of partition between uncle and nephews, it was held that the nephews were entitled to deduct from the properties to be divided "the cost of the marriages of two of them as a legitimate charge on the family funds." In Sarvana Tevan V/s. Muttayi Ammal (1871) M.H.C.R. 371 which was a suit to enforce a mortgage by the manager of the family, it was held that the loan incurred to defray the expenses of the marriage of a coparcener was for a family purpose and showed a reasonable necessity to justify the aliention. See pages 382, 383 and 384. In Garibullah V/s. Khalak Singh (1893) I.L.R. 25 All. 407, the Privy Council spoke of a loan contracted for the marriage of a junior member as for a family purpose and as a case of necessity and upheld the alienation as binding upon the family. The gift of a small portion of family property by the father or by the widowed mother at the time of a daughter's marriage without the consent of the sons which has been upheld as valid cannot be justified on the ground of necessity in a strict sense, Ramasami Ayyar V/s. Vengidtisami Ayyar (1899) I.L.R. 22 Mad. 113 and Kudutamma V/s. Narasimhacharyulu (1907) 17 M.L.J. 528. These eases seem to be sufficient authority for holding that in case the debt is contracted for a family purpose (and the marriage of a junior member of a coparcenary is a family purpose) and it is reasonably necessary on the part of a prudent manager to borrow the money for such expenditure, the transaction will bind the coparceners. But the Subordinate Judge in the Court below and the learned vakil for the respondent have laid great stress on the decision in Govindarazidu Narasimham V/s. Devarabhotla Venkatanarasayya (1904) I.L.R. 27 Mad. 206, where the learned Chief Justice and Mr. Justice MOORE refused to uphold a sale of family lands by the father to defray the marriage expenses of one of his sons on the ground that there was no moral or religious obligation to got a eon married. That case no doubt which purports to follow some observations of Mr. Justice Muthusami Ayyar in Ponnappa Pillai V/s. Pappuvayyangar (1882) I.L.R. 4 Mad. 1 supports the respondent's contention. The parties to that case were Brahmins. It was held that as failure to perform marriage did not entail a forfeiture of caste it was not a necessary ceremony or Samskara in the case of a Brahmin and the expenditure incurred for the performance of such a ceremony was in consequence no justification for the incurring of a debt. None of the oases to which I have referred appears to have been cited. There is no reference to them in the judgment. The decision itself has been very ably criticised and dissented from by Mr. Justice Chandavarkar with the concurrence of Knight, J., in Sundrabai V/s. Shivnarayana (1908) I.L.R. 32 Bom. 81. But for the fact that the defendants in the present case are Sudras to whom part of the reasoning in that case has no application, I should have felt inclined to ask the Full Bench to reconsider the decision in Govindarazulu Narasimham V/s. Devarabhotla Venkatanarasayya (1904) I.L.R. 27 Mad. 206. That case proceeds upon the view of Mr. Justice Muthusami Ayyar that pl. 29 of chapter I, Section 1 of the Mitakshara is confined to such ceremonies as if unperformed would entail a forfeiture of caste or status and upon the assumption that marriage in the ease of a male amongst Brahmins is not included in the initiatory ceremonies (Samskara). Reliance is also placed upon a text of Narada (quoted and interpreted in the Smrithi Chandrika, chapter XIII., pl. 33 and 34). Before examining this decision further, it is necessary to point out that amongst Sudras marriage is an initiatory ceremony or Samskara and perhaps the most important of all the Samskaras performed for them. In commenting on the second hemistich of verse 10 of the Acharadbyaya of Yagnavalkya rendered by Mandlik thus "their (of the twice-born) ceremonies from conception to the funeral are performed with Mantras," the groat commentator Apararka observes "that for the Sudra the Samskaras are without Mantras." He adds on the authority of the Brahmapurana "But the Sudra shall have the marriage Samskara alone. By the use of the word alone either the absence of the Mantras or of the previous Samskaras is meant, Then there is the alternative for them notwithstanding the injunction." Commenting on the effect of the Samskaras dealt with in the first half of verse 13 of Yagnavalkya rendered by Mandlik thus "In this manner, the sin produced from the seed and the womb is destroyed" (Mandlik, page 161), Apararka says this is intended to apply to the four castes, not merely to the twice-born. In the Samskara Mayukha of Nilakanta, the great Bombay authority, the author commenting on the second half of verso 10 of Yagnavalkya already quoted observes "By reason of the statement that to them (the twice- born) the ceremonies (from conception to death) are with Mantras, it is to be inferred that to the Sudra they are without Mantras. Amongst them as he has no study of the Vedas he has not the ceremonies which are incident to it like the Upanayana and the Vedavratas." The Samskara Bhaskara which is a work of authority on initiatory ceremonies says in leaf 2 (Bombay Sanskrit Edition, Venkateswara Press) "the sixteen Samskaras beginning with Garbhadanam are for all, They are accompanied by Mantras only for the twice-born." In the Samskara Ratnamala, Volume 39, Anandasrama Series, the author commenting on the same sloka of Yagaavalkya observes "It is to be inferred that to the Sudra the ceremonies from Garbhadanam to the last rites are without Mantras ." He adds "Yama says after stating the Samskaras but the Sudra should have the Samskaras done thus without Mantra Among them those (Samskaras) have no application like Upanayana and Kandavratas which are incident to Vedic study as he has no Vedic study, &c. Banerjee in his Tagore Lectures, First Edition, page 31, speaks of marriage as the only sacrament for women and Sudras. See also West and Bubler, page 1064, Note (6) citing Colebrook's Digest. The foregoing texts are sufficient authority for the position that marriage is a Samskara or initiatory ceremony amongst Sudras and as such it ought to be performed in their ease. What I have said so far is sufficient for the disposal of this ease. But as the decision in Govindarazulu Naradmham V/s. Devarabhotla Venkatanarasayya (1904) I.L.R. 27 Mad 206, deals with an issue of great importance as regards the position of the marriage ceremony in the case of the Hindus it is necessary to examine the principles on which the obligatory character of the marriage ceremony rests. There are two paths laid down for the Hindu in the sacred tests (see Mahadeva Sastri's Bhagavat Gita with Sankara's commentary, page 2). One is the path of work or attachment to the things of this world and the other the path of non-attachment or renunciation. The four asramas or stages of life are prescribed for the regenerate classes or at all events for the Brahmin. The journey from stage to stage in regular order of succession is contemplated as progress along the path of worldly work. And every Hindu of the twice-born classes, has to pass from each stage to the next and until he developes complete non-attachment in the last, the stage of the ascetie, when he prepares himself for final liberation. It is true that it is laid down in the Srutis (see the text of Jabala Upanishad, volume 29, Anandasrama Series, pages 242 and 243) that if he has conquered his passions and cultivated the feeling of non- attachment he may pass direct without going through the intermediate stages to the Asrama of the Sanyasin (see Medhadhithi's commentaries on verse 36 of Manu, chapter VI, and also the Mitakshara on verses 56 and 57 of the Prayaschittadhyaya of Yagnavalkya, page 309 of the Sanskrit Edition. But except for him who has thus qualified for entry direct into other Asramas than that of house-bolder the stage of house-holder is practically compulsory. The twice-born Hindu is not to be a student as long as he chcoses. He may remain a Naishtika Brahmachari devoted to life-long studentship under strict conditions. Slokas 49 and 50 of Yagnavalkya, Acharadyaya, have been translated as follows by Mandlik, "the Naishtika Brahmacharin is to live near the Acharya: in his absence near his son or his wife, or. his fire. In this manner the Brohmachain using his body, and subduing his senses, attains the world of Brahma, and is not bot again," I translate the commentary of the Mitakshara on these verses as follows "In this manner, i.e., in the manner stated, Naishtika, i.e., one who conducts himself till death, he shall live all his life near his preceptor. He shall not be his own master after the period of receiving instruction in the Veda. In his absence near his son; in the absence of the latter near his wife, in her absence near the fire, disciplining his body in the manner stated, his senses being controlled the Brahmachari attains the world of Brahma, i.e., achieves deathlessness, Never is he born here again," Apararka in his commentary on the same verses at pages 71 and 72 of Volume 46 of the Anandasrama Series enters into a more elaborate explanation of the two classes of Brahmaaharis, Upakurvana and Naishtika, the former being one who passes to the stage of Grahastha in the ordinary course of life and the latter being one who stays with his preceptor for life under rigid rules of self-disoiplitie, In chapter II of Manu, verses 243 to 249 deal with the Naishtika Brahmachari. It is enough to quote the first of those verses in order to indicate that the life of the Naishtika is a life of discipline under the teacher for life to qualify for liberation. Verse 243 (Buhler's Translation ) says "But if a student desires to pass his whole life in the teacher's house, he must diligently serve him, until he is freed from this body." But to the Upakurvana or a student who remunerates his teacher to pass on with his leave to the next stage of life Manu has the following injunction: Chapter III, verse 2, says "A student who has studied in due order the three Vedas, or two, or even one only, without breaking the rules of studentship, shall enter the order of house-holders." Verse 4 says "having bathed, with the permission of his teacher, and performed according to the rule the Samavarthanam (the rite on returning home), a twice-born man shall marry a wife of equal caste who is endowed with auspicious bodily marks." The house holder's entry into the nest stage of Vanaprastha or the hermit in the forest is thus enjoined. Manu, chapter VI, verse (1), says "A twice-born Snataka, who has thus lived according to the law in the order of householders, may, taking a firm resolution and keeping his organs in subjection, dwell in the forest, duly (observing the rules given below).";. The following slokas relate to the entry into the fourth stage namely that of the ascetic. Chapter VI, verses 33, 34, 36 and 37. "But having thus passed the third part of (a man's natural term of) life in the forest, he may live as an ascetic during the fourth part of his existence, after abandon ing all attachment to worldly objects. He who after passing from order to order, after offering sacrifices and subduing his senses, becomes tired with (giving) alms and offerings of food, an ascetic, gains bliss after death. Having studied the Vedas in accordance with the rule, having begot sons according to the sacred law, and having offered sacrifices according to his ability, he may direct his mind to (the attainment of) final liberation. A twice born man who seeks final liberation, without having studied the Vedas, without having begotten sons, and without having offered sacrifices, sinks downwards," The obligatory character of marriage or entry into the order of house-holder is thus propounded by Manu with great emphasis. Verses 51 and 52 of Yagnavalkya, Acha-radhyaya and also verses 45, 56 and 57 of the Prayasahittadhyaya (see pages 167, 249 and 250 of Mandlik) enforce the same view. 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. Some indeed have maintained that there is no warrant for the asramas of hermit and ascetic and that the stage of house-holder is the only one in which a man is at liberty to pass his life. The text of Gautama, Sacted Books of the East, volume II, verse 36 at page 193, supports that view. "But the venerable teacher (prescribes) one order only, because the order of householders is explicitly prescribed (in the Vedas)." And, in verse 1 he expresses it as the opinion of "some" that "he (who has studied the Veda) may make his choice (which) among the orders (he is going to enter)." Gautama's view is however rejected by Medhathithi and Vignanes wara, But that rejection is not to be understood as a sanction to each man to follow which order he likes or to be in no order at all, Marriage is a Vyavasthitha Vikalpa or fixed alternative, i e, compulsory when certain conditions exist (see Jaiminiya Nyayamala, chapter 12, pada 4, adhikarna 7) and not an Aicheehika Vikalpa or alternative to be chosen according to pleasure (Jaiminiya Nyayamala, chapter 12, pada 3, adhikarna (4), Except to the man who pursues the path of non-attaehment to all others the order of a house- holder is a necessary stage in the journey of life. A person is not justified in being in none of the Asrams. Daksha (Manmathanath Dutt s) Translations , page 434, says "a twice born person should not live even for a day without following any order. If he lives without following an order he is required to perform a penitential rite." See the Sanskrit text in volume 48, Anandhasrama Series, page 72. Apararka (Anandasrama Series, volume 46) relies on the same text of Daksha. He further adds on the authority of a text whose author is not named "a, man is not fit for Karma, O King, without a wife whether he is a Brahman, Kshathria, Vaisya or Sudra. The wife is the chief factor for men in the attainment of Dharma, Artha and Kama" which are three out of the four ends of life, the last being final liberation. The stage of the householder is extolled by Gautama in verse 3 of chapter III. page 190, Sacred Books of the East, volume II. "The house-holder is the source of these (the four orders), because the others do nob produce offspring." Manu expresses the same view. He says in sloka 78, chapter III, "because men of the three (other) orders are daily supported by the householder with gifts of sacred knowledge and food, therefore (the order of) house-holders is the most excellent order." In chapter VI again he returns to the same theme Verse 87 runs "The student, the house-holder, the hermit and the ascetic, these (constitute) four separate orders, which all spring, from (the order of) house-holders. "Verse 88" But all (or) even (any of) these orders, assumed successively in accordance with the Institutes (of the sacred law) lead the Brahmana who acts by the preceding (rules) to the highest state." Verse 89" and in accordance with the precepts of the Veda and of the Smriti, the house-keeper is declared to be superior to all of them; for ha supports the other three" (Buhler's Translation .)

(3.) There is again a text of the Yajurveda which is referred to by the commentators on Manu and Yagnavalkya and which is to the following effect: That a person is born with three debts-- one of which is to the pithris and that debt is discharged by the begetting of offspring. Manu refers to the same rule in chapter VI, verses 35 and 94. Verse 94 says a twice-born man who, with collected mind, follows the tenfold law and has paid his (three) debts, may, after learning the Vedanta according to the prescribed rule, become an ascetic." Both Medhathithi and Vignaneswara quote the Vedic text in their commentaries on Manu and Yaganvalkya to enforce the view that the stage of house-holders is compulsory to all who have not attained to the level of non-attachment which fits them for perpetual studentship or the stages of hermit and ascetic.