MADHAVRAO RAGHAVENDRA Vs. RAGHAVENDRARAO

JUDGEMENT

(1.) This is an appeal from the judgment of the Joint Civil Judge (Senior Division) at Poona in civil Suit No. 224 of 1931. "When this suit was filed, plain, tiffs 1, 2 and 3 were minors. They are sons of defendant 1 by his predeceased wife. The suit was filed by the plaintiffs next friend the g andfather, who is a Jahagirdar and a First Class Sardar in the Deccan Defendant 1 lost his first wife in about 1927. Defendant 2, who is stated to be of Bharadwaja gotra, was taken in adoption by one Kale, who was of a different gotra, on 11 July 1929. On 12 July 1929, defendant 1 married defendant 2 according to Hindu rites. The next friend of the minor plaintiffs, who was aware of the intended marriage, had taken part in various ceremonies prior to the marriage. A couple of days before the marriage he received a letter from the Shankaracharya of Sankeshwar Pith, expressing the opinion that the intended marriage of defendants 1 and 2 would be against Hindu religion. The plaintiffs next friend, thereupon, refrained from attending the marriage. Other persons attended the marriage. It was performed by the priest of the family. That was followed by a feast of about 200 or 300 people, when all friends and relations attended as usual. After the marriage was celebrated, defendants 1 and 2 and the minor plaintiffs lived with, the next friend of the plaintiffs for several months. In 1931, the next friend filed this suit in the name of the three minor sons of defendant 1. The first prayer is that the marriage of defendants 1 and 2 be declared null and void. The second prayer is that as the marriage of defendants 1 and 2 was not permitted by law, and, as the upanayan (thread) ceremony of the plaintiffs was to be shortly performed, defendant 2 should be restrained from taking part in that ceremony. It was also claimed that defendant l may be restrained from performing the ceremony without undergoing the prayaschit prescribed by the shastras. Defendants 1 and 2 filed one written statement. In para. 5 they contended that the marriage of defendant l with defendant 2 was legal, according to the custom and practice prevailing in the community of the Deccani Brahmins in this Presidency. The allegation that asagotra marriage is null and void under Hindu law was not admitted. Various other minor contentions were raised in the pleadings, with which we are not now concerned. Defendants 3 to 6 are the sons of defendant 2 by defendant l, born since the suit was filed. Since the thread ceremony of the plaintiffs has been performed, we are now concerned only with the first prayer. Before the trial Court several witnesses were examind on the question of custom. They also deposed to the meaning of the authoritative texts. It is clear that their interpretation of the texts cannot help the Court, as the Court has to look to the interpretation put on the texts by recognized commentators only. The learned trial Judge came to the conclusion that a marriage between sagotras was prohibited according to the Hindu Smriti writers and recognized commentators. He, however, held that the defendants had established the custom pleaded by them and therefore to that extent the law was modified. The suit was therefore dismissed. From that judgment, this appeal has been preferred. When the matter came before this Court, at first, only plaintiff 2, who had by then attained majority appeared as the appellant. In the course of discussion it was stated that all the plaintiffs were living with the defendants. At a later stage, plaintiffs 1 and 3 appeared through another advocate to support the appeal. It may be mentioned that all the three plaintiffs have now attained majority. It is not denied that they live with the defendants. It appears, therefore, clear that at though they have attained majority, the appeal is still prosecuted under the directions, or, according to the wishes of the paternal grandfather, who was the original next friend of the plaintiffs.

(2.) On behalf of the appellant, it was contended that the evidence led before the trial Court on the question of custom was not sufficient. It was argued that the instances were few and the details of each instance were not sufficiently full to make it a perfect instance. The learned advocate for the appellant did not address us at length on the question of interpretation of the original texts as the finding of the trial Court was in favour of the appellant. At a later stage, in reply, he however addressed us on that part of the dispute between the parties.

(3.) Mr. Kane relied on three cases in support of his contention that the evidence of custom should be clear and unambiguous, and the custom should be ancient. In Bhagvandas Tejmal v. Rajmal ( 73) 10 Bom. H.C.R. 241 the question was in respect of an adoption in the Jain community. In the course of the judgment it was pointed out that evidence of custom has to be scrutinized with care because it can be conveniently asserted by the party who wants to rely on the same. The observations of the Judicial Committee in Ramalakshmi Ammal v. Sivanantha Perumal ( 70-72) 14 M.I.A. 570 were relied upon. The observations are as follows (p. 585): Their Lordships are fully sensible of the importance and justice of giving effect to long established usages existing in particular Districts and families in India, but it is of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends. Those observations are clearly binding on us. It should be noted that the Court was dealing with a custom modifying the law of succession. In that case the Court held that the custom was not proved, because there were only three instances, two of which were only four years old, and one 20 years old, but of which the details were not perfect. Mr. Kane further relied on Basava V/s. Lingangauda ( 95) 19 Bom. 428 in support of the same proposition. That was a case of an only son's adoption. The Court up-held the adoption. In that case evidence of 29 instances was led and was spread over a period of 60 to 70 years. Ranade J. in an elaborate judgment, examined each of the instances in detail and came to the conclusion that the custom propounded was established by the evidence on record. The next in order of date is Chandika Bakhsh V/s. Mnna kuar ( 02) 24 All. 273 where it was alleged that there was a family custom that on the extinction of the line of one of several brothers, the descendants of all the other brothers took equally, without reference to their nearness to the common ancestor. An examination of the judgment shows that evidence of only four instances was led in that case. In delivering judgment Lord Macnaghten observed as follows (p. 75): The result is that in support of the alleged custom four instances at most can be adduced, and those of a comparatively modern date, and that there is no other evidence. The Court considered that in that state of affairs the custom was not proved.