Makhana Katani and Another vs Thaneshwar Sarma and Another

Sarjoo Prosad, C.J.—The only question in this appeal is whether the plaintiff is untitled to inherit to the estate of one Golap, the brother of his mother. On the death of Golap, his property was inherited by his mother Mt. Seuti. She died in 1940 when the succession opened. Plaintiff claimed that he is the son of one Mt. Soala, admittedly, a sister of Golap, who predeceased her mother. The defendants in the action are the agnates of Golap and would be admittedly the next reversioners in case it is held that plaintiff is not the heir of Golap. According to them, the plaintiff was not the legitimate son of Mt. Soala and as such, was not, entitled to inherit to Golap, his mother''s brother.

The first Court held in favour of the defendants and dismissed the suit but the decision has been reversed by the lower appellate Court which held that the plaintiff was the legitimate son of Mt. Soala. The Court found that Mt. Soala belonged to the Katani caste and after she had become a widow, she was re-married to a Brahmin called Nancieswar, with whom she lived as his wife for about twenty-five years until Nandeswar died and plaintiff was born of that union. The Court further found that at the time of marriage of Nandeswar with Mt. Soala, defendant 2 gave her in marriage and that the proper ceremonies according to Hindu rites were performed.

The contention of the learned Counsel for the appellants is that even if a widow''s remarriage was permissible under the Hindu Widows Remarriage Act of 1850, it could not validate a marriage between a Katani woman, who was a Sudra, and a Brahmin husband. It is further submitted that at tire time when the succession opened, the defendants were the legal heirs of Golap and not the plaintiff and therefore interest once vested could not be divested. The answer to the contention on behalf of the respondents is that a marriage between a Sudra woman and a Brahmin is recognised under the Hindu Marriages Validity Act. The Act came into force in 1949, but it has retrospective operation. Section 3 of the Act provides that notwithstanding anything contained in any other law or in any text, rule or interpretation of Hindu Law or in any custom or usage, no marriage between Hindus shall be deemed to be invalid or ''over to have been invalid'' by reason of the fact that the parties thereto belonged to different religions, castes, sub-castes or sects.

On the strength of the section, it is apparent that although the parties to the marriage may have belonged to different castes yet such marriage was never to be deemed to have been invalid merely on that account. The objection, therefore, that the marriage was invalid as between the members of different castes cannot prevail in view of this provision of the law. The words that no such marriage shall be deemed "ever to have been invalid" are sufficiently emphatic.

It must be held on the terms of the section that at no time after the passing of the Act, it can be held that such a marriage would be illegal, merely on the ground that the parties though Hindus belonged to different castes provided that the marriage had been in accordance with Hindu rites. It appears that even before the passing of this Act, ''Anuloma'' marriages of this type were recognised to be valid marriages in Hindu Law.

That is, a marriage between a Hindu male of a higher caste and a Hindu female of a lower caste was permissible and the issues of that union were recognised to be legitimate. In this connection, I may refer to a passage from Mulla''s Hindu Law, Edn. 11, para 435, where the legal position has been summed up on the basis of various authorities.

Ancient texts prohibited ''pratiloma'' marriages, i.e., between males of lower caste and females of higher caste.'' Accordingly such marriages have been held by Courts to be invalid. But ''Anuloma'' marriages were permitted and recognised by the texts. Accordingly, the Bombay High Court held that a marriage between a Vaisya male and a Sudra female (vide ''Bai Gulab v. Jiwanlal Harilal'' AIR 1922 Bom 32 (A) or a Brahmin male and a Sudra female is valid ''Natha Nathuram v. Mehta Chhotalal Dajibhai'' AIR 1931 Bom 89 (B).

Similarly, the High Court of Calcutta has held that a marriage between a Brahman and a Sudra woman both of whom are Jati Vaisnavas is valid See-- Nalinaksha Majhi and Others Vs. Rajani Kanto Das Mohanta and Others, These cases indicate that ''Anuloma'' marriages of this nature were permissible and recognised by Hindu Law and that being so, even apart from Section 3, Hindu Marriages Validity Act, 1949, I have no hesitation in holding that the marriage of Mt. Soala with Nandeshwar, father of the plaintiff in this case was a valid marriage and the plaintiff as such being a legitimate son, bom of that union was entitled to inherit the estate of the maternal-uncle Golap on the death of his grand-mother.

The learned Counsel for the appellants referred us to a decision in--''Bai Kasni v. Jamnadas Mansukh Raichand'' 14 Bom LR 547 (D) but that was, evidently a case of ''Pratiloma'' marriage which has no application to the facts of the present case. Another case which the learned Counsel for the appellants has cited before us was a decision in-- Deivanai Achi and Another Vs. R.M. Al. Ct. Chidambaram Chettiar and Others,

In that case, the question was about non-per-formance of the necessary ceremonies validating marriage and the marriage was held to be invalid on that account. The question does not arise in this case at all. Under the old law, a distinction was made between ''Anuloma'' and ''Pratiloma'' marriages. The former was held to be valid but not the latter as already pointed out by me above. The position of course stands modified by Section 3 Hindu Marriages Validity Act which now legalises both the forms of marriages.

he appeal therefore is without any substance and must be dismissed. The decree of the earned Subordinate Judge should be upheld. In the circumstances, however, we will not make any order as to costs.

Deka, J.

I agree.