Sami Naidu vs Pandaridas Reddiar and others

Natesan, J.—The attaching decree holder as plaintiff in a claim suit having lost in both the Courts below has preferred this second appeal.

For money due by one Janakalakshmi Ammal on a promissory note executed by her on 22nd September 1952 for a sum of Rs. 2500 he filed the

suit O.S. 277 of 1955 on the file of the District Munsif Court, Poonamallee. He got the decree transferred to the District Munsif Court, Villupuram

for execution. Meanwhile Janakalakshmi Ammal died and her husband Krishnadoss and cousin Janakiammal were brought on record as her legal

representatives. When the suit properties were attached in execution of the decree by the transferee Court, a claim was put forward by the first

respondent herein claiming title to the properties as purchaser from one Govinda Reddiar. This Govinda Reddiar claimed title to the properties as

heir and legatee of his wife, Indrani, she being the daughter of Janakalakshmi Ammal, the executant of the promissory note on which the suit O.S.

277 of 1955 was filed. Indrani''s title to the properties was based on a deed of settlement executed by the said Janakalakshmi Ammal on 14th

October 1940, nearly 12 years prior to the promissory note. Indrani had bequeathed the properties to her husband, Govinda Reddiar, under a

registered Will evidenced by Ex. B. 2 (registration copy). The husband Govinda Reddiar conveyed the properties in favour of the first defendant

under a sale deed Ex. B.1 dated 16th August 1955 for a consideration of Rs. 1500. It may be pointed out that the first defendant''s father Thulasi

Reddiar had obtained sale of the properties from Janakalakshmi Ammal under Ex. A.3 dated 29th June 1953 and the first defendant obtained the

sale deed from Govinda Reddiar, the husband of Indrani, subsequently, finding that there was dispute as to heirship of Indrani. The finding of the

Courts below is that the first defendant has been in possession of the properties. The plaintiff''s case was that Govinda Reddiar, the claimant''s

vendor, was not the husband of Indrani and could lay no claim to the suit properties, to effectively pass title to the first defendant. His case was that

Janakalakshmi Ammal was the owner of the properties and on her death the properties passed into the possession of her husband Krishnadoss

who had also been made a party defendant in O.S. 277 of 1955. For the plaintiff, reliance was placed on an order passed in a suit O.S. 187 of

1951 on the file of the District Munsif''s Court, Villupuram, rejecting the claim of Govinda Reddiar to be brought on record as the legal

representative of Indrani, the Court holding that Govinda Reddiar was not the husband of Indirani. This order was passed on 27th October 1952.

A revision had been taken against the said order to this Court and on revision the matter was remanded for further enquiry. Pending the enquiry,

Janakalakshmi Ammal herself died and her husband Krishnadoss who got himself impleaded as her legal representative did not press the matter

further. Both the Courts below have found on ample and substantial evidence that Govinda Reddiar had been married to Indrani with all rites

Govinda Reddiar has given evidence as D.W. 1 of his marriage to Indrani which was performed according to Sastraic rites. One other matter may

be noticed in this connection. During the minority of Indrani, Janakiammal, her mother''s cousin, had been appointed as her guardian under the

Guardian and Wards Act, in O.P. 13 of 1943 on the file of the District Court, Cuddalore. On the death of Indrani Govinda Reddiar as the heir of

the deceased ward applied in the District Court, South Arcot, for direction to the Court guardian Janakiammal to deliver possession of all the

properties of Indrani to him, and this application was ordered by the District Court.

The finding of the Courts below that a marriage with all the necessary ceremonies to constitute a valid marriage took place between Indrani and

Govinda Reddiar, is based on relevant and substantial evidence and is not open to challenge in second appeal. The recitals in the Will of Indrani

are confirmatory of the relationship between her and Govinda Reddiar.

An attempt was made in this Court to argue that Indrani could not have got title to the suit properties under the settlement deed Ex. B.7, as it

was a term of the settlement that she should marry one Kuppuswami Reddiar. The language of the document gave room for a possible construction

that Indrani should marry Kuppuswami Reddiar, that they together should take the properties and that if either of them failed to marry the other,

the recalcitrant party would have no interest in the properties. But this was not the case with which the plaintiff came to Court. The plaintiff''s case

was built on the basis that on Indrani''s death the properties passed on to her mother Janakalakshmi Ammal as heir and that Govinda Reddiar was

not her husband. The contention now attempted will go against this case and in fact may defeat the plaintiff''s claim. If the contention is accepted, it

will be Kuppuswami Reddiar who will be the owner of the properties. However, it maybe stated that even if the document is open to such

construction, there is evidence on record that it is Kuppuswami Reddiar who refused to marry Indrani. The trial Court in these circumstances

rightly observed that as Kuppuswami Reddiar did not wed Indrani in pursuance of Ex. B.7, the latter became the absolute owner of the properties.

The whole case of the plaintiff was built on Indrani being the absolute owner of the properties and she leaving on her death in 1952 her mother

Janakalakshmi Ammal and her father Krishnadoss surviving.

In these circumstances the argument in second appeal turned round an episode during the guardianship of Indrani under Janakiammal, the Court

guardian. When Indrani was aged about 12� years, Janakiammal as Court guardian applied in O.P. 13 of 1943 for the grant of permission to

celebrate the marriage of Indrani with Govinda Reddiar. This petition was dismissed on 11-10-1943 and permission refused, as the age of Indrani

at that time was only about 12� years. It is notwithstanding this order of the Court refusing permission to have Indrani married to Govinda

Reddiar, that the marriage was celebrated. That marriage was celebrated in 1944 and it is made out in evidence that all the relations took part in

the marriage. The argument now advanced is that as the Court refused permission for the marriage, the marriage subsequently celebrated must be

held to be void and a nullity. It does not appear from the judgments of the Courts below that the case in this form was presented there. Of course it

is now raised before me as a pure question of law. In my view there is little substance in this contention. Learned Counsel referred to Ss. 24 and

43 of the Guardian and Wards Act (VIII of 1890). S. 24 provide that a guardian of the person of a ward is charged with the custody of the ward

and must look to his support, health and education, and such other matters as the law to which the ward is subject requires. No doubt, the

marriage of a minor, particularly that of a Hindu female, is one of most important among other matters which the guardian of the person must look

to. A more important aspect of the matter is that under S. 41 (1) the powers of the Court guardian of the person cease in the case of a female

ward, by her marriage to a person who is not unfit to be a guardian of her person or if the guardian was appointed or declared by the Court, by

her marriage to her husband who is not, in the opinion of the Court, so unfit. Sec. 43 provides for the Court passing orders on applications for

regulating the conduct of proceedings of any guardian and for enforcement of the orders passed. By Sec. 43 (4) it is provided that in the case of

disobedience to an order passed under S. 43 (1) or S. 43 (2), the order may be enforced in the same manner as an injunction granted under the

CPC is enforced. In the case of an order under S. 43 (1) which may be on application by any person interested or by the Court suo motu

regulating the conduct or proceedings of any guardian appointed or declared by the Court, the order is enforced as an order of injunction and as if

the ward were the plaintiff and the guardian were the defendant. In the case of an order under S. 43 (2) which applies to a case where there are

more guardians than one of a ward and they are unable to agree upon a question affecting his welfare and one of the guardians applies to the Court

for direction, the order shall be enforced as if the guardian who made the application were the plaintiff and the other guardian or guardians were the

defendants. In the present case the permission which the guardian sought had been refused by the Court on the ground that the ward was only

about 12� years old. The marriage had taken place about a year later; in all probability she must have completed 14 year of age by then as the

Child Marriage Restraint Act, XIX of 1929, was in force. The ward''s father and mother were alive and it is nobody''s case that the marriage was

forced or brought about fraudulently by anybody. My attention was drawn by Mr. G.N. Chari learned Counsel for the appellant to Monijan Bibi v.

Dt. Judge, Birbhum 42 Cal. 351, 358 where it is observed--

This clearly indicates the desirability, if not the absolute necessity, of the sanction of the Court, before the marriage is arranged and solemnised. We

hold accordingly that a ward of Court cannot marry without the consent of the Court. This indeed has bees recognised as an elementary principle

in the law of England. This view was accepted as applicable to the case of a Hindu minor for whom a personal guardian has been appointed by the

Court in Subadra Koer v. Dhajadhari Goswami 15 C.L.J. 147 where it was ruled that marriage or connivance at marriage with a ward of Court,

without consent of the Court, is a contempt of Court liable to be severely punished.

But this decision is not authority for the contention that the marriage itself is void and a nullity ; nor does the decision of this Court in The

Management of Sri Ranga Vilas Ginning, Spinning and Weaving Mills Ltd. Coimbatore Vs. The Industrial Tribunal, Madras and Others,

whereunder the aforesaid decision of the Calcutta High Court has been referred to with approval in the least advance the case of the appellant.

This Court was there dealing with an application for permission of the Court for the marriage of the minor. The trial Court had refused it and this

Court referring to the true perspective of approach in such matters directed that on the facts of the case the permission sought should be accorded.

In Subhadra Koer v. Dhajadhari Goswami 15 C.L.J. 147 referred to by the Calcutta High Court, the marriage of the minor had taken place in

contravention of the Court''s order. The question was whether action could be taken against the guardian under S. 43 (4). It was contended for the

guardian that as the marriage performed in accordance with the rules of Hindu Law could sot be set aside, the order which was originally issued

upon the guardians and had been disobeyed by them could no longer be enforced and consequently they were not liable to be punished in the

Manner contemplated in Cl. (4) of S. 43. With reference to this argument, the learned Judges observed:

The Sub-Section 43 (4) is not limited solely to cases where as irremediable mischief has not been done aid where, therefore, the status quo ante

might be restored ; it applies to all cases of disobedience, where are not the effect of the disobedience is capable of removal or reparation.

The learned Judges take it for granted that the marriage is not void. In Mayne''s Hindu Law, 11th Edn. it is stated at page 141-

Even where the marriage is in contravention of an injunction or order of a Court obtained at the instance of the guardian having the preferential

right, nevertheless, it has been held that the marriage, when once solemnised, is valid.

At page 162 of the same volume the principle is thus set out:--

The doctrine of factum valet, rightly interpreted, is particularly applicable in connection with questions relating to marriage and adoption. The

general principles are stated in several cases. The application of the maxim must be limited to cases where there is neither want of authority to give

or to accept nor any imperative interdiction ; or where there is no force or fraud. A marriage actually and properly celebrated is legal and binding,

although it has taken place in violation of a previous agreement to marry another person ; or although it has been performed without the consent of

the person whose consent ought to have been obtained.

Similar observations are found in Mulla''s Principles of Hindu Law, 12th Edn., at page 608:

Whatever the correct view may be, the rule established by the decisions is that a marriage which is only solemnised, and is otherwise valid, is not

rendered invalid, because it was brought about by misrepresentation to the guardian or without the consent of the guardian for the purpose of

marriage, or in contravention of an express order of the Court. But a marriage though performed with the necessary ceremonies, may be set aside

by the Court, if it was brought by force or fraud.

In Bai Diwali v. Moti Karson 22 Bom. 509 at 512, the learned Judges observed:

Bai Diwali was, no doubt guilty of disobeying the order of the District Judge ; but neither that circumstance by itself, nor the disregard of the

preferable claim of the male relations invalidate the marriage.

In Brindaburn Chandra Kurmakar v. Chandra Kurmakar 12 Cal. 140, pending a suit for custody of a minor girl when there was an injunction

prohibiting the mother from getting the girl married, the mother gave away the girl in marriage with all necessary marriage rites. The learned Judges

held in the circumstances that the marriage rites having been gone through by the mother and natural guardian and there being no fraud, the doctrine

of factum valet prevailed and the absence of the legal guardian''s consent did not invalidate the marriage. Again in Khushalchand Lalchand v. Bai

Mani 11 Bom. 247 where the mother celebrated her daughter''s marriage with due ceremonies without the consent of the father and when an

injunction by the Court was in force, the validity of the marriage was upheld. The above two case have been considered as good authority by this

Court in Venkatacharyulu v. Rangacharyulu 14 Mad. 316 for the proposition that when the mother of a girl acting as her natural guardian in view to

her welfare and without fraud or force gave away the girl in marriage and the marriage rite was duly solemnised, the marriage was not to be set

aside. Reference in this connection may also be made to the decision of the Allahabad High Court in Munshiram v. Emperor 58 All. 402 where in

respect of a marriage in contravention of the Child Marriage Restraint Act it was observed:

The Act aims at and deals with the restraint of the performance of the marriage. It has nothing to do with the validity or invalidity of the marriage.

The question of the validity or invalidity of the marriage is beyond the scope of the Child Marriage Restraint Act. Marriage is performed by the

performance of certain ceremonies which depend on the race and religion of the parties who enter into marriage.

In Moti Vs. Beni, it is pointed out that the celebration of the marriage might be a contravention of the provisions of the Marriage Restraint Act ;

but the marriage will not be invalid, the Act merely imposing certain penalties on persons bringing about such marriage. The validity of a marriage

under the Hindu Law is dependent upon its due solemnisation according to the rites and regulated by custom and usage of the community

recognised by law. The ward of a Court cannot be penalised and her future prospects blighted by declaring the invalidity of the marriage when

there is no force or fraud in the matter. If third parties brought about the marriage in defiance of the orders of Court, they may be punishable for

contempt or otherwise. But the liability of these persons to be penalised will not make the marriage a nullity if it is legal and valid according to the

personal law of the parties. In the result, the second appeal fails and is dismissed. No costs. No leave.