THIMMAKKU v. BANDLU RANGAPPA — 1976 DIGILAW 91 (KAR)

VENKATACHALIAH, J. ( 1 ) THIS appeal by the unsuccessful plaintiffs is directed against the judgment and decree d/30-3-1972 made in OS. 27 of 1966 on the file of the civil Judge, Chitradurga, dismissing the suit for partition instituted by the first-plaintiff and plaintiffs 2 to 7 claiming to be the wife and children respectively of one Bandlu Hanumanthappa of Jagalur in the District of chitradurga who died in April 1964, against the second defendant and defendants 3 to 7 who are admittedly the second wife and the children respectively of the said Bandlu Hanumanthappa. The Court below upheld the contention of the defendant that inter alia the first plaintiff, though originally married to the said deceased Hanumanthappa subsequently became divorced in accordance with, and as permitted by the custom of the caste and that plaintiffs 2 to 7 were not the children of or begotten by the said Hanumanthappa, but were born to one B. T. Reddy also known as B. Thippareddy in whose company the first plaintiff is stated to have lived after her separation from Hanumanthappa. ( 2 ) ON the contentions urged in support of this appeal, the points that arise for determination are : (i) whether the marital status of the first plaintiff as the wife of the said Hanumanthappa is dissolved by divorce; (ii) whether plaintiffs 2 to 7 are the children of the paid Hanumanthappa and in that right entitled to a share in the joint family estate, and (iii) what are the partible properties and to what share, if any, are the plaintiffs or any of them entitled. ( 3 ) ON the first question whether thpre was such a divorce alleged to have been taken place on 26-3-1953, defendants' plea is that the first plaintiff not having borne children to Hanumanthappa, the latter took ratnamma, the second defendant, as his second wife: that as an inevitable seouel there were misunderstandings and incompatibilties leading to the first plaintiff living apart and instituting a suit for maintenance in OS. 22 of 1953 on the file of the Munsiff, Davangere; that this claim was settled in terms of the registered maintenance deed-Ext. D1 d/. 26-3-1953 and that immediately after Ext. D1 was executed, the first plaintiff, in the presence of DWs. 22 of 1953 on the file of the Munsiff, Davangere; that this claim was settled in terms of the registered maintenance deed-Ext. D1 d/. 26-3-1953 and that immediately after Ext. D1 was executed, the first plaintiff, in the presence of DWs. 7, 8, 9 and 10, threw away the 'thali' in token of disclaimer by her of the marital status, the case of the defendants sought to be made out in evidence being that such act of throwing away of the 'thali' and the act on the part of Hanumanthappa in picking it up summed up to the requirements of a valid divorce recognised by the custom amongst the Kamma Reddies to which caste the parties are stated to belong. It is clear, therefore, that what is pleaded by defendants, being a custom derogatory to the general Hindu Law, the burden lies upon them to prove the existence and the incidents of the alleged custom which must measure up to the essentials of a valid custom and be ancient, certain and reasonable. Custom cannot be extended by analogy; nor one custom deduced from another. Much less can a custom be enlarged by a parity of reasoning since it is the usage that makes the law and not the reason of the thing. The pleadings in this behalf as indeed the evidence on the point, are sketchy. Indeed, the passage in 'castes and Tribes in Mysore' by H. V. Nanjundiah, relied upon by Sri K. Subba Rao, learned Counsel for the respondent-defendants, even if consdidered to govern and be applicable to the parties, itself shows that it is the caste that is the arbiter. The evidence of DWs. 7, 8, 9 and 10, even if wholly accepted, sums up to nothing more than that the first plaintiff threw away her 'thali' and that her husband picked it up. No positive judicial inference as to the existence and incidents of the alleged custom is permissible in the state of the pleadings or the evidence on record. Accordingly, we have no hesitation in accepting the contention of Sri B. Nagaraj, learned Counsel for the plaintiffs-appellants, that defendants have neither proved the existence of the custom in this behalf nor the actual fact of divorce and that the finding of the Court below on Issue No. 7 is not sustainable. Accordingly, we have no hesitation in accepting the contention of Sri B. Nagaraj, learned Counsel for the plaintiffs-appellants, that defendants have neither proved the existence of the custom in this behalf nor the actual fact of divorce and that the finding of the Court below on Issue No. 7 is not sustainable. We, therefore, reverse the finding of the Court below and hold that the alleged divorce is not proved. ( 4 ) THE second question is whether plaintiffs 2 to 7 are the children of the first plaintiff born to or begotten by the said Hanumanthappa. Plaintiffs, in this case, start with a very great advantage by way of a strong presumption favouring legitimacy and against bastardy erected by S. 112 of the Evidence Act. The basis of the rule is the notion that it is undesirable to enquire into the paternity of a child whose mother and her husband had between them a subsisting marital status and had had access to each other. S. 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man shall be conclusive proof that he is the legitimate son of that man. Where one fact is declared by law to be conclusive proot of another, Court shall on proof of that fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it, however, Sec. 112 makes this presumption rebuttable by showing that the parties to the marriage had no access to each other at any time when the child or children in question could have been begotten. ( 5 ) DEFENDANTS have sought to rely upon Ext D9 certified copny of the extract of the School Admission Register, pertaining to the second plaintiff Exts. D4 and D6 being extracts of birth registers and Ext. D5, the extract of School Admission Register pertaining to the fifth plaintiff; and Ext. D7 another extract of School Admission Register pertaining to the sixth plaintiff, which contain recitals that the father of the plaintiffs concerned in the said documents is one B. Thipna Reddy. The Court below has relied upon these documents in support of its findings for the defendants. D7 another extract of School Admission Register pertaining to the sixth plaintiff, which contain recitals that the father of the plaintiffs concerned in the said documents is one B. Thipna Reddy. The Court below has relied upon these documents in support of its findings for the defendants. But, it appears to us that in the absence of the examination of and lestimony by some witness competent to speak to matters either as to the knowledge of the relationship or as to the source of the information or statements on which the said recitals came to be incorporated in the said documents, the recitals, in themselves cannot be treated as substantive evidence and as admissible on the question concerning paternity purportedly indicated in the said documents as such entries are matters extraneous to what is strictly enjoined uprn the officer to record. The question whether the defendants have discharged their burden of showing that the first plaintiff and Hanumanthappa had had no access to each other after 26-3-1953 has therefore, to be decided with reference to the other evidence on record, ( 6 ) LET us now examine the other evidence. Ext. D1 is a registered maintenance deed d/26-3-1953 executed by the first plaintiff in favour of her husband Hanumanthappa which contains certain important recitals. This document is attested by the first plaintiff's father. The document recites that as the first plaintiff did not bear children, Hanumanthappa took a second wife and that in view of the consequent incompatibilities she was living away from Hanumanthappa and had even instituted a suit for maintenance. Ext. D1 in those circumstances contemplated a provision for the maintenance of the first plaintiff by a lump-sum payment of ps. 2,000 towards her food, shelter and raiment for the rest of her life. This document, while, in so far as it proceeds on the recognition of the continuance of the marital status implicit in the obligation acknowledged in the said Ext. Dl to provide maintenance to the first plaintiff throughout her life, is inconsistent with the defendants' case of divorce, however, in so far as it declares an express agreement to live apart is inconsistent with and destructive of the case of plaintiffs that even after the Ext. Dl there was access between her and the said Hanumanthappa. The attempts of the first plaintiff to explain away Ext. Dl there was access between her and the said Hanumanthappa. The attempts of the first plaintiff to explain away Ext. Dl as not binding upon her are disingenuous and do not commend themselves for acceptance particularly in view of the wide variance in the versions in the plaint and the one trotted out in her evidence on the point. ( 7 ) THE first plaintiff has tendered evidence as PW. 3. Her testimony is indeed revealing. We may refer to some of her own statements in evidence. She stated :". . . One Thippareddy who is my mother's junior uncle's son is living in Chitradurga. Formerly he was doing some business and now he has joined a dramatic troupe. . . . Four of my children are staying with Thippareddy and studying in schools in Chitradurga. . . . After the second marriage I was not visiting my husband's house at Jagalur. Three of my children were born at Guddadarangavanahalli find the ether three were born at Chitradurga. . . . The ether three children were born in the hospital at Chitradurga. . . . My husband used to visit me in my father's house, once in 15 days on a month. There are no references to show that he was so visiting my hoi. S3. NO ore else has seen him visiting my house. He used to come in the night and get back in the morning. . . Thippareddy himself has admitted my children to the school. Thimpareddy is also called by the name B T. Reddy. He is not married at all. It is false that he has married me. I was visiting B. T. Reddy's house onrc in 15 days or one month as my children were studying there. I used to stay there for a day or two in his house. . . . I was visiting his house as my children were studying there. . . . Plaintiff's Nos. 5, 6 and 7 are studying in the school at Santhepet. I do not know if the father name of all of them is mentioned as B. T. Reddy. I do not know if in the school records the father's name of any one of them is mentioned as Hanumantha Reddy. . . I do rot know if I was prosecuted in CC. I do not know if the father name of all of them is mentioned as B. T. Reddy. I do not know if in the school records the father's name of any one of them is mentioned as Hanumantha Reddy. . . I do rot know if I was prosecuted in CC. 396/60 on the file of the i Class Magistrate, Chitradurga along with Rudramma and others. . . "tn our opinion, the circumstances admitted by the first plaintiff and the inferences that they are susceptible to, though may not in themsslves, be conclusive, will not be without significance when read with certain other facts born2 out by the evidence on record. ( 8 ) EXT. P38 spoken to by DW. 3, Khande Rao, is the Insurance proposal respecting an insurance policy taken out on the life of the said B T. Reddy, in which a very significant circumstance obtains. One Thimmakke is described therein as the w'fe and nominee of that B. T. Reddy in whose favour a nomination is made. Confronted with this fact her statement in cross-examination is merely that she does not know if B. T. Reddy has described her as his wife in the nomination. That the voters 1st of Chitradurga factually shows her as residing at Chitradurga, is by implication, admitted by the first plaintiff by the suggestion made to pw. 1 in his cross-examinat'on to the effect that it was DW. 1 who got false entries made in the voters' list. The further circumstances that she is aware that in the school records pertaining to plaintiffs 2 to 7 the name of their father is shown as B. T Reddy, it clear by her statement in evidence that Ginn Hanumantha Reddy, Thippna Reddy, DW. 1 and DW 6 muniyappa have got their entries made in the birth legisters and school registers in respect of plaintiffs 2 to 7. ( 9 ) EXT. D8 is a certificate d/13-2-65 issued and spoken to by DW. 15, p B. Krishnamurthy, a doctor, to the effect that Hanumantha Reddy underwent vasectomy sterilisation operation on 17-8-1963. It is contended- and not without force-by the respondents that the fourth plaintiff whose age at the date of the institution of the suit is given as 5 months could not have been begotten by the said Hanumantha Reddy. 15, p B. Krishnamurthy, a doctor, to the effect that Hanumantha Reddy underwent vasectomy sterilisation operation on 17-8-1963. It is contended- and not without force-by the respondents that the fourth plaintiff whose age at the date of the institution of the suit is given as 5 months could not have been begotten by the said Hanumantha Reddy. ( 10 ) APART from the above circumstances, there is the oral evidence of DW. 1 Thippareddy, DW. 2 Vishunatha Rao, DW. 4 Rudrappa, DW. 5 ramappa and DW. 6 Muniyappa, who speak about the first plaintiff living in the company of B. . T. Reddy in Chitradurga Town and being engaged in the business of a fuel depot, and of a hotel along with him. We have been taken through the evidence of these witnesses. This evidence has commenced result to the trial Court and it is not possible to say that there is anything in this evidence or in anything elected in tne course of cross-examination of theae witnesses which would reader it unstate to rely on this evidence, the testimony ot PWs. 2, 5 and 6 who claim to have seen the allgea visit or Hanumantha Reddy to Guadadarangavanahalii has not commended itself for acceptance by the trial Court. We have examined this part of the oral evidence for the plaintiff and we are oi the view that it does not inspire confidence. ( 11 ) THE first defendant is the father of the late Hanumantha Reddy. There was a partition be. ween the father and the son under tne partition deed, Ext. P34 d/29-3-1954. indeed the first defendant was not a necesary party to the suit. All the same his evidence as DW10 is of some value as he has no interest of his own in the properties of the family of his sons branch. He speaks to facts which, if accepted, would lead to the inference that plaintiffs 2 to 7 were not born to his son Hanumantha Reddy. It Hanumantha reddy begot children by his first wite, the first plaintiff, there was no reason why this fact should have been kept a secret and why dw. 10 should not have known about it. There is also no reason why dw. It Hanumantha reddy begot children by his first wite, the first plaintiff, there was no reason why this fact should have been kept a secret and why dw. 10 should not have known about it. There is also no reason why dw. 10 should subscribe to an attempt to suppress this fact, and expose plaintiffs 2 to 7 to the infamy of illegitimacy if really they were his own grand-children. ( 12 ) THE circumstances borne out by Ext. D1 that the first plaintiff and Hanumantha Reddy lived apart, taken together wi. h the cumulative effect of all the other oral and documentary evidence on record bearing on the question supports the defendants' case that Hanumantha Reddy had had no access to the first plaintiff after execution of Ext. D1. If the evidence of DWs. 1, 2, 4, 5, 6 and 10 is accepted, and indeed there is hardly any material to reject the same, the inference would be that the first plaintiff lived in the company of the said B. T. Reddy at Chitradurga a circumstance irreconcilable with and destructive of her case that Hanumantna reddy used to visit her at Guddarangavanahalli. After Ext. D1, Hanumantha reddy lived at Jagalur stated to be about 20 miles away from guddarangavanahalli. The presumption under S. 112 of the Evidence Act would stand rebutted if it is shown that Hanumantha Reddy had severed all physical relations with the first plaintiff. In Chillukuri Venkateswarulu v. Chillukuri Venkatanarayana, AIR 1954 SC 176 , B. K. Mukherjea, J (as he then was) ttated the scope of the presumption under S. 112 and the nature of evidence a rebuttal of the presumption would require in the following terms:"14) It may be stated at the outset that the presumption, which s. 112 of the Indian Evidence Act contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between tne parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access again connote, as has been held by the Privy council: Vide 'karapaya v. Mayandi' (AIR 1934 PC 49), existence and non-existence of opportunities for marital intercourse. It is conceded by Mr. Access and non-access again connote, as has been held by the Privy council: Vide 'karapaya v. Mayandi' (AIR 1934 PC 49), existence and non-existence of opportunities for marital intercourse. It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff appellant, that non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physisical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory. Mr. Somayya has also not contended seriously before us that the principle of English Common Law: Vide 'russel v. Russel' (1924 AC 687), according to which neither a husband nor a wife is permitted to give evidence of non-access, after marriage to bastardise a child born in lawful wedlock, applies to legitimacy proceeding in India. No such rule is to be found anywhere in the Indian Evidence Act and it may be noted that the old Common Law doctrine has itself been abrogated in England by the provision of S. 7 of the Matrimonial Causes Act, 1950 : vide 'in re Jenion' (1952-1 All. ER. 1228)",after bestowing our anxious and careful attention to the matter, it appears to us that the conclusion that after the first plaintiff lived away from Hanumanthappa there was no access to each other and that plaintiffs 2 to 7 are not children of or begotten by Hanumanthappa become compelling and inescapable in view of the direct and circumstantial evidence obtaining in the case. ( 13 ) IF, as we are inclined to hold, Ext. D1 records a clear agreement on the part of Hanumanthappa and the first plaintiff to live apart, the mere fact that the marital status subsisted will not let the presumption under S. 112 remain undiluted and in all its pristine force and vigour. In the Aylesford Peerage case, (1886)11 App. Cas. 1, Lord Blackburn stated:". . . D1 records a clear agreement on the part of Hanumanthappa and the first plaintiff to live apart, the mere fact that the marital status subsisted will not let the presumption under S. 112 remain undiluted and in all its pristine force and vigour. In the Aylesford Peerage case, (1886)11 App. Cas. 1, Lord Blackburn stated:". . . It appears perfectly clear, upon the evidence which has been produced, that after Lord Aylesford's return from India, his wife was separated from him, and was living with Lord Blandford as if she were lord Blandford's wife at that time living with him, I mean to say, in a state of cohabitation and that Lord Aylesford not only executed a deed of separation from his wife, but endeavoured to obtain a divorce. In that endeavour he failed. The marriage tie, therefore, remained undissolved, and he was still married. But after that attempt to obtain a divorce had failed, whilst Lady Ayiesford was living with lord Blandford (and it is not disputed at all that adultery was committed), i cannot think that any presumption arises that Lord Aylesford had cohabitation with her. It seems to me that to say that such a presumption arises from the mere continuance of the non-dissolution, to call it so, of the matrimonial ties under such circumstances would be putting a prcsumpticn of law very, very contrary to that of common sense; and I do not think that any authority goes so far as to say that theie should be such a presumption. "these observations appear apposite in the context of the facts and circumstances which must be regarded as proved in the present case. ( 14 ) THIS takes us to the third point which concerns the extent of the partible properties and shares. In view of our findings on point No. (ii) the suit of plaintiffs 2 to 7 requires to be dismissed and accordingly, we affirm the decree of dismissal made by the Court below so far as plaintiffs 2 to 7 are concerned. However, in view of our findings on point No. (i), the suit of the first plaintiff must be held to be maintainable in so far as her entitlement to a share as the intestate heir of Hanumanthappa under the provisions of the Hindu Succession Act 1956 are concerned. However, in view of our findings on point No. (i), the suit of the first plaintiff must be held to be maintainable in so far as her entitlement to a share as the intestate heir of Hanumanthappa under the provisions of the Hindu Succession Act 1956 are concerned. The share to which she is entitled is in her capacity of an intestate heir of the estate of the deceased Hanumanthappa which consists of his interest as coparcener in the coparcenary properties of his branch of the family. In other words, the first plaintiff as one of the co-widows of Hanumanthappa is entitled to a share in the deceased Hanumanthappa's share in the joint family properties of the joint family of himself and defendants 2 to 7, which gets separated by the operation of the proviso to S. 6 of the Hindu succession Act, 1956. It is not necessary for us to decide what her share is in view of the circumstance that the learned Counsel on both sides stated that what the first plaintiff would be entitled as such heir was 1/12th of the share and interest of Hanumanthappa which gets separated on his death or 1/36th share in the properties of the joint family of the deceased hanumanhappa's branch. ( 15 ) SO far as the question of the extent of the partible properties is concerned there are no clearcut findings recorded by the Court below, except in regard to items 1 to 5 of plaint 'a' schedule, which concerns defendant-8. The learned Counsel for the appellants, however, gave up all contentions against defendant-8 and accordingly we affirm the finding of the Court below on issue No. 5 that items 1 to 5 of the plaint 'a' schedule are not properties of the family of Hanumanthappa liable to partition. Therefore, even the suit of the first plaintiff in respect of these items requires to be dismissed. However, in regard to the question as to the extent of other immoveable and moveable properties liable to partition are concerned, the matter will have to go back to the trial Court for a proper ascertainment. Therefore, even the suit of the first plaintiff in respect of these items requires to be dismissed. However, in regard to the question as to the extent of other immoveable and moveable properties liable to partition are concerned, the matter will have to go back to the trial Court for a proper ascertainment. ( 16 ) ACCORDINGLY, this appeal is allowed in part and while the decree of dismissal of the suit of plaintiffs 2 to 7 is affirmed, we, however, set aside the decree of dismissal of the suit so far as the first plaintiff is concerned and declare that the first plaintiff is entitled to 1/36th share in all the moveable and immoveable properties of the family of Hanumanthappa and remit the matter back to the Court below to ascertain what the partible moveable and immoveable properties of the joint family of the branch of Hanumanthappa are-except items 1 to 5 of the plaint 'a' schedule in respect of which even the first plaintiff's suit is dismissed-and to dispose of the suit on the basis and in the light of the said findings. The first plaintiff and the defendants shall have an opportunity of adducing further evidence, if any, on the said question in the trial Court. ( 17 ) THE parties will bear their own costs in this appeal. --- *** --- .