MUTHUSAWMI MUDALLIAR Vs. MASILAMANI ALIAS SUBRAMANIA MUDALIAR

JUDGEMENT

(1.) The plaintiff sues to recover possession of certain properties claiming to be the reversioner of Avudanayagam Mudaliar, the last male owner thereof from the alienees of the 1 defendant who claims to be, but according to the plaintiff is not, according to Hindu Law, his widow, as at the time of her marriage and till her husband's death she was a Christian, or, in the event of the 1 defendant's title as widow to the property being established, for a declaration that the alienations by her are not binding on the reversioners. The lower appellate Court has found that the plaintiff has established the relationship alleged by him and that the alienation by the first defendant was not made for purposes which would justify a widow under Hindu Law in alienating the property. The only question therefore for decision is whether the 1 defendant is, as the widow of the deceased, entitled to his property under the Hindu Law. In that case the plaintiff would not now be entitled to possession. The 1 defendant was a Christian before her marriage to the deceased Avudanayagam. The Subordinate Judge accepts the defence evidence that the marriage between her and Avudanayagam, a Hindu belonging tot he Kaikkolar class, was performed according to the formalities prescribed by the Hindu Law; a Brahmin priest officiated at the marriage, the Homum was performed, and the Tali was tied round the neck of the bride. They lived together as husband and wife for 30 or 40 years from the date of marriage to the death of Avudanayagam in 1901. They were living with his parents as members of one family. She lived as a Sivite Hindu like her husband. They were not treated as out- castes or put out of caste. The members of the Kaikkolar community, including the plaintiff, associated with them as Hindus and members of their community. The plaintif and the other members of the caste took meals cooked by the 1st defendant. They were also worshipping at the temples. They had a boy who was treated as a Hindu. When Avudanayagam died his funeral ceremonies were performed by the plaintiff's son. These acts are mainly proved by the plaintiff's witnesses themselves. The common Purohit of the deceased and the plaintiffs, who is a Brahmin, and also the Purohit of the Tinnevelly Kaikkolar community proves that the 1 defendant took part in the religious ceremonies performed by her husband at which he was the officiating priest.

(2.) The validity of this marriage is assailed on various grounds. It is first contended that the 1 defendant was a Christian at the time of her marriage, which is therefore null and void under the Christian Marriage Acts of 1872 and 1865. This question was not raised in the Court of First Instance. If there-fore the 1 defendant was a Christian when she was married, without further enquiry it cannot be decided whether the marriage took place while the Act of 1865 or 1872 was in force. But it is unnecessary to consider that question as there is no doubt that the first defendant became a Hindu when she married her husband. She was a Roman Catholic Christian before her marriage. She removed the cross from her neck. Her forehead was smeared with holy ashes. The Brahmin priest made Ho- mum and had the Tali tied round her neck, or in other words with her husband she accepted his religion also. The question then is whether a marriage of a Hindu with a convert from Christianity is valid. It is contended by Mr. Ramachandra Aiyar that it is valid both by custom and the general law of the land. The Subordinate Judge holds that no custom has been proved to validate the marriage and even if proved, the custom cannot be upheld as repugnant to Hindu Law. The District Munsif recorded his finding in these terms: "The evidence let in in the case shows the prevalence of the. practice of Hindus marrying Christian girls according to Hindu rites and such girls after their marriage following the Hindu religion. " The Subordinate Judge in appeal holds that " the worthless evidence of a couple of witnesses who have no clear conception of what they, are talking about is altogether insufficient to establish a custom." It is difficult to understand the Subordinate Judge. If he is referring to the evidence of the four defence witnesses as worthless, he has entirely ignored the evidence given by the plaintiff's witnesses themselves and the facts admitted by the plaintiff which go very far to, if they do not, prove the custom. The plaintiff (as his own first witness) admitted in cross-examination that "among Mudalies Christian girls used to be married if no other girls would be available;" and in re-examination said " if marriages of Christian girls be made according to Hindu religion, Hindus will go and take meals. " He proves that one Ponnammal, daughter of Antony, a Christian, married a Hindu Pichakannu Mudaliar and succeeded to the property of her husband who died without any issue. Her sister was married to another Hindu Sivite. One Chiuna Muttoo married a wife who was a Christian. His son who predeceased him was a Sivite and she succeeded to his property. He refers also to one Myvelu Mudaliar whose mother was a Christian woman. The plaintiff's son and daughter were married by members of these families. Another witness plaintiff's 5th witness, proves that one Arumazi, daughter of a Christian father Samuel, was married to a Hindu, according to Hindu rites. He says she went to the Christian church before marriage; after marriage she would smear ashes to her forehead. Her daughter was married by the witness's son, a Hindu. He refers also to another intermarriage where both parties remained Hindus after marriage. He states that according to usage "if a Christian girl be married by a Hindu, she would follow her husband's religion." The plaintiff's 6 witness admits that his brother-in-law, a Hindu, married a Christian wife. This evidence given by the plaintiff's witnesses strongly supports the defence evidence which proves the usage. The evidence establishes beyond all doubt that according to usage the members of the Kaikkolar community in that locality used to marry girls who were Christians, who lived as Hindus after their marriage, were accepted as members of the community to which their husbands belonged, and were allowed rights of inheritance under the Hindu Law. The learned pleader for the respondents did not dispute these facts which prove the custom. The practice is not shown or alleged to be recent. Considering that the Catholic Christian community is an ancient community and their converts did not always give up caste on conversion, there is nothing improbable in the plaintiff's evidence that it is an ancient custom. The pleader for the respondent contended that the custom is so utterly repugnant to the Hindu Law as declared by the Courts and in the Dharmahsastras that it should not be recognized. The Judicial Committee has held : " Under the Hindu system of law clear proof of usage will outweigh the written text of the law" and under the Madras Civil Courts Act. Section 16 of Act III of 1873, any proved custom about marriage must be upheld.

(3.) Apart, however from its validity as being in accordance with custom, I am also of opinion that the marriage is valid under Hindu Law. It has been settled by a uniform course of decisions in this Presidency that marriages between members belonging to different divisions of the Sudra caste are valid- see Pandya Thelavar V/s. Puli Telavar (1863) 1 M.H.C.R. p. 478 Inderun Valungypooly Taver v. Ramasawmi Pandia Thalaver (1869) 13 M.I.A. p. 1.41 at 158 & 159 where the husband was a Marava and the wife was of Parevaran, inferior class; and Ramamani Ammal V/s. Kulanthai Nachiar (1871) 14 M.I.A. p. 346 at 352 where the wife was a Vellala, a superior class and the husband was of an inferior class. These decisions have since been followed. In Calcutta, Bombay and Punjab, the same view is now accepted-see Upoma Kuchain V/s. Bholaram Dhubi (1888) I.L.R. 15 C. 708; Fakirgauda V/s. Ganji (1896) I.L.R. 22 B. 278; Haria V/s. Kansuya P.R. Vol. 43, p. 326. In the Punjab case which had reference to a marriage between members of sub-divisions of Kshatriyas the question is fully discussed by Chatterjee J. But it is urgued that as the 1 defendant was a convert from Christianity she must be treated either as an out-caste or a person who does not belong to any caste, and a marriage between her and a Sudra is invalid, though marriages between different divisions of Sudras might be valid. In my opinion the contention cannot be accepted. It is difficult to find any principle on which any such distinction can be supported. The decision in Pandeya Telaver V/s. Puli Telaver (1863) 1 M.H.C.R. p. 478 was based by Holloway J. on the ground that the classes spoken of are the four main castes and not the sub-divisions of these castes; and as the twice-born man is instrllcted to marry in his own class the fair inference is that on one not twice-born the precept is not binding. All those who are not twice-born are thus treated as Sudras. Neither : the 1 defendant nor her husband belonged to the twice-born castes. The learned Chief Justice in the same case was prepared to go further and hold that the restrictions on marriage between the castes were only directory. In the Calcutta case the wife was the daughter of an out-caste and in the Bombay case the parties were Lingayets, who in theory recognize no caste as all who wear lingams are equal; and as they are not twice-born were treated as of the same caste for this purpose. It is clear therefore that by "Sudras" it was intended to include all Hindus who are not dwijas or twice-born classes. This is strictly in accordance with Manu, Chapter X., Sl 4. That a boy taken in adoption need not belong to any caste also supports this view--Shamsing V/s. Santabai (1907) I.L.R. 25 B. 551 and Kusum Kumari Roy V/s. Satya Runjum Das (1903) I.L.R. 30 C. 999. Further, in Mayna Bat V. Uttaram (1864) 2 M.H.C.R. 196 the children of a Brahmin woman by a European father were treated as Sudras. It is clear, therefore, that the 1 defendant must be treated as a Sudra under these decisions and the marriage is, therefore, valid under Hindu Law.