Govindarazulu Nakasimham vs Devarabhotla Venkatanarasayya and Others

Ramabrahman had four sons, the first, second, and third Defendants and Nagendrudu. On the 29th March 1884, he sold certain ancestral lands

to one Rajayya for Rs. 268 which was required by him in connection with the marriage of his son Nagendrudu (exhibit I). The first Defendant and

Nagendrudu signed this document as witnesses and there can be no doubt that they assented to the sale made thereby. The main question that has

been argued in this second appeal is whether the sale evidenced by exhibit I can be held to be valid in so far as the shares of the second and third

Defendants are concerned. It does not appear to be seriously disputed that the law bearing on this question is correctly set out by Mr. Mayne as

follows (Hindu Law, 6th edition, para. 336). ""It is an established rule that a father can make no disposition of the joint property which will

prejudice his issue, unless he obtains their assent, if they are able to give it, or unless there is some established necessity, or moral, or religious

obligation to justify the transaction."" The first Defendant and Nagendrudu, as already stated, assented to the sale. It is clear that there was nothing

that can be termed necessity for the sale and the question therefore to be decided is whether there was such a moral or religious obligation on the

father to get his son Nagendrudu married as to make the sale valid in so far as the shares of the second and third Defendants are concerned. It, of

course, cannot be contended that there is a legal obligation on a father to get his son married, but it is strongly urged on behalf of the contending

Respondents that there is a religious obligation on him to get this ceremoney performed. In support of this proposition we have been referred to

certain sacred texts and to passages in the works of ancient law-givers. To these a brief reference must be made. Attention is drawn to the

following verses in Chapter II of the Laws of Manu: Nos. 36-47, 169, 170 and 172 (Sacred Books of the East, Volume 25, pages 36, 37, 38 and

61). In these verses directions are given as to the initiatory ceremonies to be performed in the case of Brahmans and it is laid down that he who has

not been initiated is on a level with a Sudra (verse 172). Nowhere, however, is marriage in the case of a male included among the initiatory

ceremonies. Then as to the obligation on a father or, if he is dead, on an elder brother to perform the initiatory ceremonies, reference is made to

Narada, Chapter 13, verse 33, which is to the effect that for those brothers for whom the initiatory ceremonies have not been duly performed by

their father, they must be performed by the brothers from the paternal property (Sacred Books of the East, Volume 33, page 197). Commenting

on this Dr. Jolly, the learned Translator and Editor of Narada, writes: ""There appears to be some doubt as to what is meant by the term Samskara

''initiatory or sacramental ceremonies,'' some commentators including the ceremony of marriage in that term and others declaring the initiatory

ceremonies to terminate with the investiture with the sacred thread"" (Narada, page 197 note). Turning to the Mitakshara, we find (Chapter I,

section I, para. 29) as follows: ""Even one person, who is capable, may conclude a gift, hypothecation, or sale, of immoveable property, if a

calamity affecting the whole family require it, or the support of the family render it necessary, or indispensable duties, such as the obsequies of the

father or the like, make it unavoidable (Stoke''s ''Hindu Law Books,'' page 376). The question that has to be decided with reference to this text is,

do the words ""or the like"" include the marriage of a son? As to this we are referred to the annotation by Mr. Colebrooke appended to Chapter I,

section VII, para. 3 of the Mitakshara relating to initiation which is as follows: ""Initiation (Samskara); a succession of religious rites commencing on

the pregnancy of the mother and terminating with the investiture of the sacerdotal thread, or with the return of the student to his family and finally his

marriage (Stoke''s ''Hindu Law Books,'' page 398). Mr. Colebrooke in his Digest expresses himself even more positively as to marriage being one

of the initiatory ceremonies. Commenting on the text ""let the father himself performing the eight ceremonies which perfect the second birth of a

twice-born man"" he names the eight ceremonies to which he believes that the text refers concluding with the investiture of sacred thread (7th) and

the ceremony on the return of the student from, his preceptor''s house (8th) and then adds: ""The whole number of ceremonies called Samskara as

expiating the sinful taint contracted in the mother''s womb, and as effecting regeneration, in other words, as perfecting the class of a twice-born

man, are ten,"" i.e., to the eight ceremonies which he has already mentioned, he adds the ceremony which precedes conception and marriage which

he says is the last of these sacraments (Colebrooke''s ''Digest of Hindu Law,'' Volume If, page 301). We cannot find that Mr. Colebrooke hadany

sufficient authority for including marriage among the ceremonies necessary to perfect the class of a twice-born man. In the Smriti Chandrika, the

text from Narada relating to the initiatory ceremonies which ""must be invariably performed"" (Chapter XIII, verse 34) is quoted and commented on

as follows: ""The ceremonies contemplated by this text commence with Jatakarma and end in Upanayana. The word ''ceremonies'' takes here the

above limited sense as the text says ''must without fail be defrayed'' as marriage, and c., are not ceremonies that must without fail be performed, the

law permitting the life of a perpetual student"" (Smriti Chandrika translated by T. Krishnaswami Ayyar, page 60). As to this question we have no

hesitation in accepting the opinion of Mr. Justice Muttuswami Ayyar which is as follows: ""The phrase ''the like'' in para. 29 (Mitakshara, Chapter I,

Section 1, para. 29 to which allusion has already been made) both according to Hindu Law and the rule of construction, refers to the annual

sradhas the ceremony of Upanayanam in the case of minors in the three higher classes, and of marriage in the case of girls belonging to those

classes before they attain their puberty, and in short to such ceremonies as, if unperformed, would entail a forfeiture of caste or status"" (Ponnappa

Pillai v. Pappuvayyangar ILR 4 Mad. 1. We must hold that there is a complete absence of authority for the proposition that omission to perform

the ceremony of marriage in the case of a male Brahman entails a forfeiture of his caste or status and, such being the case, there is no moral or

religious obligation on a father to bring about the marriage of his son.

For the foregoing reasons we must hold that the sale of the plaint land included in exhibit I is invalid in so far as the shares of the second and

third Defendants are concerned. The Plaintiff in his appeal to the Subordinate Judge''s Court and in second appeal here makes no claim except in

regard to the shares of these sons and we accordingly allow this second appeal with costs; set aside the decrees of both the lower Courts and give

the Plaintiff a decree for the recovery of two-fifths of the plaint land. The Defendants Nos. 4, 5 and 6 are ordered to pay their own costs and those

of the Plaintiff throughout and the Defendants Nos. 1, 2, 3 and 7 will pay their own costs in all Courts.