T B K VISVANATHASWAMY NAICKER Vs. KAMU AMMAL

JUDGEMENT

(1.) The appellant is the son of the late Zamindar of Bodinayakanur who died on the 15th of December 1888. The principal question which we have to decide is whether his mother Karuppayee the 4th defendant in the suit, was married to the Zamindar or not. The Subordinate Judge has found that she was not married, and I concur in that conclusion. It is conceded that there were no marriage ceremonies performed; it is conceded that there are ceremonies ordinarily in use in Kumbala caste to which the Zamindar belonged. The lady was a lady of a different caste, of the Marava caste--the daughter--so far as we know--of an agriculturist who lived in the town of Bodinayakanur. It is conceded that there is a secondary form of marriage which in Ramasami Kamaya Naik v. Sundaralingasami Kamaya Naik (1893) I.L.R. 17 M. 422, was found to be a legal marriage in this caste in the Saptur Zamindary and it is conceded that that form of marriage was not made use of on the occasion of the union of the Zamindar and the 4th defendant. What is alleged is that there was a marriage by mutual consent of both parties. The lady said that she would not go and live with the Zamindar if he did not make her his wife, and the Zamindar agreed to take her as a wife. Now it was suggested and a finding was called for on the point whether by the custom of the caste to which the Zamindar belonged such an agreement amounts to a lawful marriage. The Subordinate Judge has found against the existence of the custom and we are not asked to reverse that finding. So we have it, that there is no custom of the caste by which marriage by mutual consent is marriage; and we are driven to look in the law laid down in shastras for some form of marriage by mutual consent which might be applied to this case. But it is necessary first to find that the agreement alleged by the lady is proved, and I am unable to differ from the Subordinate Judge s finding that that agreement is not proved. Immediately after the Zamindar s death steps were taken by the Collector of the District, as is usually the case on such occasions, to ascertain facts in relation to succession and so forth of the Zamindary. On that occasion as Exhibit I shows this lady, the 4th defendant, made no claim of any sort to be the wife of the Zamindar. The Tahsildar in the Deputy Collector s presence took a statement from her, in which she did not say she was the Zamindar s wife, and before the Collector she made no claim of any sort to succession on behalf of her son. Now it seems to me that that could hardly have been her attitude at that time if, as a matter of fact, some years before, she had insisted on being made a wife before she would consent to enter the palace at all. Consequently it seems to me that Exhibit I and also Exhibit II, in which she did not hesitate to describe herself not as a wife but as bhogastree are strongly against the alleged argument. No doubt it is suggested that the term "Bhogastree" found in Exhibit II may be used to devote a married woman or wife and that was so in the Saptur Zamindary case, Ramasamy Kamaya Naik v. Sundaralingasami Kamaya Naik (1893) I.L.R. 17 M. 422. But here it seems to me that, the lady s own evidence shows that she did not regard bhogastree as meaning a wife. She would resent being called bhogastree. It is pretty clear that at the time of the Zamindar s death she made no claim of any sort to be his wife.

(2.) His Lordship next proceeded to consider the evidence as to the agreement pleaded and held that it was not proved..

(3.) That being so it is unnecessary to say whether I should have to hold that the Gandharva marriage by mutual consent would be a legal marriage between the Zamindar and the 4th defendant. There was no such marriage. The lady was taken into the palace under circumstances which have not been proved by any direct evidence, unless I accept the defence evidence that she was abducted without the knowledge of her family, but it is unnecessary for me to say anything about that.