GULABCHAND Vs. BHAIYALAL

JUDGEMENT

(1.) JACKSON , A.J.C. 1. This judgment will govern two second appeals Nos. 288 and 289 of 1928. They arise from two suits, in one of which the malguzar sues for possession of certain fields in mouza Dhanga-wan. In the other the three plaintiffs, Bhaiyalal, Jhunni and Chutti, have sued for mesne profits of the said fields for the period during which they were dispossessed by the malguzar. Gulabchand's suit and his defence in the other suit are based on two surrender deeds, one executed by Mt. Phuljariya who, he alleges, was the Kari wife of Chunnu, the deceased brother of Bbaiyalal, Jhunni and Chutti. The other surrender deed has been executed by Jhunni and Ohutti. It is the finding of the two lower Courts that Phuljariya, who was a Brahmin widow, was not and could not be legally married to Chunnu, an Ahir, and that the alleged surrender deed executed by Jhunni and Chutti was not intended by them to be a surrender deed, they were overreached by the malguzar and that they were merely executing a compromise in respect of certain criminal cases that had been filed in connexion with the dispute about the land.

(2.) THE lower appellate Court has pointed out that in the grounds of appeal before it nothing was stated about the marriage of Pbuljariya with Chunnu. In these circumstances I am inclined to think that Gulabchand should not be allowed in second appeal to urge that the marriage took place and was valid; but at the same time I should like to state my opinion that on the record it could not be held proved that a valid marriage took place. My attention has been drawn to the following sentence in Russell's Tribes and Castes of the Central Provinces, Vol. 2, p. 23: Bat though the Ahir caste takes its name and is perhaps partly descended from the Abhira tribe, there is no doubt that it is now and has been for centuries a purely occupational caste, largely recruited from the indigenous tribes.

(3.) UNDER this issue it was open to Gulabchand to prove the alleged usage and showi that such a marriage was valid; but he has not done so. Bai Gulab v. Jiwanlal Harilal A.I.R. 1922 Bom. 32 has been cited. In that case it has been held that in the Bombay Presidency a marriage between a Vaishya male and the illegitimate daughter born of Vaishya father and a Sudra mother is valid. That decision is, however, no authority for holding that the marriage between a Sudra and a woman of a higher caste is valid. Assuming that Chunnu and Phuljariya did go through a form of marriage, I am unable to hold that it has been proved to be valid.