MUTHUSAMI MUDALIAR Vs. MASILAMANI

JUDGEMENT

(1.) The plaintiff sues to recover possession of certain properties claiming to be the reversioner of Avudanayaga 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 from alienating the property. The only question, therefore, for decision is whether the 1 defendant is 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 wasa Christian before her marriage to the deceased Avudanayaga. The Subordinate Judge Accepts the defence evidence that the marriage between her and Avudanayagam, a Hindu belonging to the Kaikolar 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 about 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 outcastes or put out of caste. The members of the Kaikolar community including the plaintiff associated" with them as Hindus and members of their Community, The plaintiff and the other members of the caste took meals cooked by the 1 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 facts are mainly proved by the plaintiff's witnesses themselves. The common Purohit of the deceased and the plaintiff, who is a Brahmin and also the Purohit of the Tinnevelly Kaikolar 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.

(3.) 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, therefore, 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 Homum 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. Ramachandrier 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 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 plaintiffs 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 Chinna Muttoo married a wife who was a Christian, His son who predeceased him was 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 5 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 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 Kaikolar 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 respondents contended that the custom is so utterly repugnant to the Hindu Law as declared by the Courts and in the Dharma Sastras that it should not be recognized. The Judicial Committee has held: "Under the Hindu system of law clear proof of usage will out- weigh 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.