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2007 DIGILAW 608 (AP)

KRISHNAMMA v. P. SUBRAMANYAM REDDY

2007-07-03

P.S.NARAYANA

body2007
( 1 ) THE appellants are the plaintiffs, the original plaintiff in o. S. No. 61/82 on the file of Principal Subordinate Judge, Chittoor and the plaintiff's transferee. The respondents are defendants in the said suit o. S. No. 61 of 1982 on the file of Principal Subordinate Judge, Chittoor. The suit was instituted by Krishnamma, the original plaintiff, as an indigent person claiming partition of the plaint A, B and C Schedule properties into two equal shares and for separate possession of one such share. The 2nd defendant was brought on record as per orders in. A. No. 145 of 1985 dated 14. 6. 1985. The 1st and 2nd defendants who are the respondents in this Appeal had put in separate written statements and the learned Principal Subordinate Judge, Chittoor having settled the issues, recorded the evidence of P. Ws. 1 to 5, DWs. 1 to 15, marked ex. A-1, Exs. B-1 to B-37 and ultimately came to the conclusion that the 1st appellant/plaintiff is not entitled to the reliefs prayed for and dismissed the suit. Hence, the Appeal. ( 2 ) CONTENTIONS of Sri S. V. Muni Reddy: Sri S. V. Muni Reddy, the learned counsel representing the appellants had taken this Court through the respective pleadings of the parties, the evidence available on record and would maintain that the plea of customary divorce had not been specifically pleaded and even otherwise the evidence of D. W. 2 and D. W. 3 is vague and on the strength of such evidence, recording a finding relating to customary divorce cannot be sustained. The learned Counsel also would submit that when the defendants are unable to establish the plea of customary divorce, the marital tie between Appaswamy Reddy and Krishnamma was never put to an end to in accordance with Law and hence automatically on the death of Appaswamy Reddy both Krishnamma, the plaintiff in the suit, and the 1st respondent/1st defendant in the suit, the step son of krishnamma, would be entitled to equal shares and hence automatically she is entitled to the relief of partition. The learned Counsel also would submit that the episode of illicit intimacy of Krishnamma and Krishnamma being driven out of the village and the further episode that she was married to one Venkata Subba reddy and she begot children also, cannot be believed since there is no acceptable evidence placed before the Court in this regard. The Counsel also would submit that as far as Items 15 to 18 of the A Schedule are concerned, though they stand in the name of 2nd respondent/2nd defendant, these are also to be treated as family properties since the 2nd respondent/2nd defendant as such had no independent income to purchase such properties and even otherwise there is no acceptable evidence in this regard and on the contrary, the ancestral nucleus of the family of Appaswamy Reddy having been clearly established, the suit as prayed for should have been decreed. The learned Counsel also had taken this Court through the voluminous oral and documentary evidence available on record and the findings recorded and would comment that the learned Principal subordinate Judge, Chittoor was more guided away by the age factor of those who deposed in favour of the respondents/defendants relating to the alleged customary divorce. This approach is totally a wrong approach. Further, the learned Counsel would contend that even if on the strength of the material available on record, it is to be taken that the plaintiff had been leading unchaste life, that itself would not operate as a bar for her succeeding to her share of the properties in controversy. The learned Counsel also relied upon certain decisions to substantiate his submissions and would contend that in the light of the facts and circumstances, the Appeal to be allowed. ( 3 ) CONTENTIONS of Sri M. N. Narasimha Reddy : sri M. N. Narasimha Reddy, the learned Counsel representing the respondents had taken this Court through the respective pleadings of the parties and the evidence available on record and would submit that the evidence of D. W. 1 and d. W. 4, defendants 1 and 2 in the suit, is available who had categorically deposed about all the facts. The Counsel would maintain that in the light of the evidence of D. W. 4, it is clear that Items 15 to 18 of the A Schedule are the separate properties of D. W. 4, the 2nd defendant. The Counsel would maintain that in the light of the evidence of D. W. 4, it is clear that Items 15 to 18 of the A Schedule are the separate properties of D. W. 4, the 2nd defendant. The learned Counsel also would maintain that there is voluminous oral and documentary evidence available on record to show that after the episode of 1955 when the elders of the village, in the light of the illicit intimacy of the plaintiff, had decided to put an end to the marital life of Appaswamy Reddy with the said Krishnamma, and the aspect that P. W. 1 had been totally away from the village in question, is not in serious controversy though some attempt was made on the part of the plaintiff/p. W. 1 to show as though she has something to do with this village even subsequent thereto. The learned Counsel also pointed out to Ex. B-32 whereunder an attempt was made to show as though she had something to do with the village, but however pointed out that she was shown as the daughter of, and not wife of, and this was done with a view not to show the name of either Appaswamy Reddy or the name of venkata Subba Reddy and this aspect also would probabilise the specific stand taken by the respondents/defendants. The learned Counsel also would contend that D. W. 2 and D. W. 3 are disinterested elders who had spoken to the mode of divorce, the customary divorce, and this was in the year 1955. e. , prior to the hindu Marriage Act 1955 came into force. It is no doubt true that the plea of customary divorce as such had not been specifically pleaded, but divorce by mutual consent had been clearly pleaded in the pleading and substantially since the plea had been established, the learned Judge came to the conclusion that in the light of the voluminous documentary evidence apart from the oral evidence available on record, especially the evidence of D. W. 2 and D. W. 3 and D. W. 12, d. W. 13 and D. W. 14, there was customary divorce between the plaintiff/p. W. 1 and appaswamy Reddy in 1955. The Counsel also pointed out to the evidence of D. W. 5 to D. W. 11 - the several of the creditors of the family, who had deposed in favour of the 1st defendant in relation to the improvements made of the family properties. Hence, the learned Counsel would conclude that in the light of the findings reached by the learned Judge, inasmuch as there is no legal infirmity as such, the said findings to be confirmed and the Appeal to be dismissed. ( 4 ) HEARD the Counsel on record and perused the oral and documentary evidence available on record and also the findings recorded by the learned principal Subordinate Judge, Chittoor. ( 5 ) IN the light of the respective contentions advanced by the Counsel on record, the following Points arise for consideration in this Appeal : 1. Whether the appellants/plaintiffs are entitled to the relief of partition and the other ancillary reliefs prayed for in the facts and circumstances of the case ? 2. Whether the findings recorded by the learned Principal Subordinate Judge, chittoor, in relation to the divorce and the remarriage of the 1st appellant/plaintiff Krishnamma to be confirmed or to be disturbed in the facts and circumstances of the case ? 3. Whether the findings recorded in relation to Items 15 to 18 of the plaint A schedule properties to be confirmed or to be disturbed in the facts and circumstances of the case ? 4. If so, to what relief the parties would be entitled to ? ( 6 ) POINT Nos. 1 to 3 : For the purpose of avoiding the repetition of findings, it would be convenient to answer these Points together. The parties hereinafter would be referred to as "plaintiff" and "defendants" as shown in o. S. No. 61/82 on the file of Principal Subordinate Judge, Chittoor. It is needless to say that the 2nd appellant was brought on record as the plaintiff's transferee. ( 7 ) BEFORE taking up the further discussion, it may be appropriate to have a glance at the respective pleadings of the parties. It was pleaded in the plaint as hereunder : The 1st defendant is the son of Appaswamy Reddy through his first wife. After her death, Appaswamy Reddy married the plaintiff as his second wife about 30 years prior to the filing of the suit and they had no issues. It was pleaded in the plaint as hereunder : The 1st defendant is the son of Appaswamy Reddy through his first wife. After her death, Appaswamy Reddy married the plaintiff as his second wife about 30 years prior to the filing of the suit and they had no issues. It was further pleaded that the 1st defendant and Appaswamy Reddy were living together. Items Nos. 1 to 14 of the plaint A schedule properties and Item no. 1 in the B Schedule were the self-acquired properties of Appaswamy Reddy and he had no ancestral properties and he was in exclusive possession of the same during his life time. It was further pleaded that after the death of Appaswamy reddy in 1971, the plaintiff and the 1st defendant succeeded to the same and they had been in joint possession. It was further pleaded that out of the income from the properties of Appaswamy Reddy and by joint efforts of the plaintiff and the 1st defendant, some more properties were purchased but they were taken in the name of the 1st defendant as he was managing the family after the death of Appaswamy Reddy. Item No. 2 of the plaint B Schedule is one such item. As the plaintiff is an illiterate, she was not able to give the details of the other acquisitions and she begs leave of the Court to include such items whenever she comes to know of them. The movables in the C Schedule were the separate properties of Appaswamy Reddy. The plaintiff and the 1st defendant had been in joint possession of them also after the death of Appaswamy Reddy. Out of the income of the suit properties, Item Nos. 15 to 18 of the A Schedule properties were purchased by the 1st defendant, but the sale deeds were taken in the name of the 2nd defendant on 4-2-1984, 12-3-1984 and 6-8-1984 with a fraudulent motive of depriving the plaintiff from getting a share therein. The 2nd defendant is only a benamidar and the real owner is the joint family of the plaintiff and the 1st defendant. The plaintiff has to get half share in Item nos. 15 to 18 of the plaint A Schedule properties also in the same manner in which she has half share in the other Items of the plaint A to C Schedule properties. The plaintiff has to get half share in Item nos. 15 to 18 of the plaint A Schedule properties also in the same manner in which she has half share in the other Items of the plaint A to C Schedule properties. It was further pleaded that recently the 1st defendant had taken a hostile attitude against the plaintiff and the demands made by the plaintiff to the 1st defendant for partition were unsuccessful. The 1st defendant is powerful and he had the backing of several villagers and of the village officials. The plaintiff also learnt that after the death of Appaswamy Reddy, the 1st defendant got lands transferred in the village accounts in his name. The plaintiff has no other properties except her wearing apparel mentioned in the D Schedule. ( 8 ) THE 1st defendant filed written statement with the following averments : It was pleaded that Item Nos. 6 to 10 of the plaint A Schedule and item No. 2 of the plaint B Schedule are the self acquisitions of the 1st defendant as they were purchased with his separate money and without the aid of the income from the joint family properties. It was denied that Appaswamy Reddy had no ancestral properties. Appaswamy Reddy was possessed of some ancestral properties in Thimmireddipalle village originally. He sold them and with the sale proceeds thereof he purchased some of the suit properties and with the income therefrom he purchased some other properties. It was also further pleaded that Appaswamy Reddy had no self acquisitions and all the A and B schedule properties are his ancestral and joint family properties and the family was not possessed of jewels, double bullock-cart, cows, jaggery and groundnuts mentioned in the C Schedule. The utensils also are not worth more than rs. 2000/ -. The allegation that the plaintiff also succeeded to the properties and that she is in joint possession of the same had been denied as false. As the plaintiff developed illicit relationship with one Harijan Chengaiah, as per the custom prevailing in the community to which the parties belong, Appaswamy reddy divorced her by mutual consent even in April 1955 and she left Baitapalle village for Nalla Kalva in Kurnool District where she married one P. Venkata subba Reddy and begot two daughters Chowdeswari and Nagendramma through Venkata subba Reddy. The plaintiff was living with Venkata Subba Reddy even during the life time of Appaswamy Reddy and therefore the plaintiff has no right whatsoever to any of the suit properties. Further, after the death of Appaswamy Reddy, the 1st defendant had been in open, continuous and exclusive possession and enjoyment of the suit properties and thereby he prescribed his title to the same by adverse possession also. The allegation that the plaintiff is in joint possession and enjoyment of the same is idle. It was further pleaded that it is false to say that some properties were acquired in the name of the 1st defendant from out of the income of the properties of Appaswamy Reddy and the joint family efforts. It was further specifically pleaded that Item Nos. 6 to 10 of the plaint A Schedule and Item No. 2 of the plaint B Schedule are the self acquired and separate properties of the 1st defendant. It was further pleaded that it is false to say that the family had been in affluent circumstances. The 1st defendant was obliged to borrow monies for leveling the lands and sinking a well and the sinking of the well itself costed him Rs. 30,000/. The 1st defendant incurred debts for purchasing pumpsets and crusher and for laying underground pipes and for other agricultural operations like planting coconuts etc. It was also further pleaded that Item Nos. 15 to 18 of the plaint A Schedule were purchased by the 2nd defendant herself under three sale deeds from the cash presented to her at the time of her marriage and by executing a pronote for rs. 10,000/- in favour of one of her vendors Doraswamy Reddy in respect of the balance of consideration. These properties were being treated as her separate properties and they were enjoyed by her as such. Further, it is false to say that she is a benamidar or that the properties were purchased by the 1st defendant himself in her name. It was denied that the 1st defendant developed hostile attitude towards the plaintiff. The plaintiff had severed all her connections with the family even in 1955 and she never stepped into the family thereafter. The plaintiff never demanded for partition. The suit is false, frivolous and vexatious and it is liable to be dismissed with compensatory costs. It was denied that the 1st defendant developed hostile attitude towards the plaintiff. The plaintiff had severed all her connections with the family even in 1955 and she never stepped into the family thereafter. The plaintiff never demanded for partition. The suit is false, frivolous and vexatious and it is liable to be dismissed with compensatory costs. ( 9 ) THE 2nd defendant filed written statement and adopted the written statement of the 1st defendant in all material particulars. The 2nd defendant also further pleaded that Items 15 to 18 of the plaint A Schedule properties are her self-acquisitions as she purchased the same under three sale deeds with a sum of Rs. 15,000/- presented by her father at the time of her marriage which constituted her 'stridhana'. It was further pleaded that it is false to state that she is only a benamidar or that the properties were purchased by the 1st defendant in her name. She had also executed a promissory note for Rs. 12,000/- in favour of one of her vendors Doraswamy Reddi in respect of balance consideration. As those properties were being treated and enjoyed by her as her separate properties, the plaintiff cannot claim any share therein. ( 10 ) ON the strength of these pleadings, the following Issues were settled : 1. Whether the plaintiff was the divorced wife of the deceased Appaswamy Reddy by mutual consent in 1955 ? 2. Whether Items 6 to 10 of the plaint A Schedule and Item No. 2 of the plaint B schedule are joint family properties or the separate properties of the defendant ? 3. What are the movable properties possessed by the family ? 4. Whether the deceased Appaswamy Reddy possessed any ancestral properties or whether any of the suit properties are the separate properties of the deceased appaswamy Reddy ? 5. Whether the defendants' family is indebted as shown in the Schedule to the written statement ? 6. Whether the defendant has perfected his title to the suit properties by adverse possession ? 7. Whether the defendant is entitled to compensatory costs ? further, additional Issues as hereunder also had been settled : whether Items 15 to 18 of the plaint A Schedule were purchased by the 1st defendant in the name of the 2nd defendant or the sale acquisitions of the 2nd defendant ? 7. Whether the defendant is entitled to compensatory costs ? further, additional Issues as hereunder also had been settled : whether Items 15 to 18 of the plaint A Schedule were purchased by the 1st defendant in the name of the 2nd defendant or the sale acquisitions of the 2nd defendant ? Whether the plaintiff married one P. Venkata Subba Reddy in 1955 ? the learned Principal Subordinate Judge recorded findings in detail, relied upon the evidence of D. W. 2 and D. W. 3, believed the episode of 1955 and under what circumstances the plaintiff/p. W. 1 had been sent out of the family once for all by putting an end to the marital tie with Appaswamy Reddy and further recorded a finding that the evidence would clearly go to show that she was married to one p. Venkata Subba Reddy and came to the conclusion that in the light of the oral and documentary evidence available on record, the plaintiff is not entitled to the relief of partition and ultimately dismissed the suit. ( 11 ) THE respective pleadings of the parties already had been specified supra. P. W. 1 no doubt deposed in detail the averments made in the plaint and also deposed in relation to Ex. A. 1 dated 19-4-1955, registration copy of the settlement deed executed by Venkata Reddy to the father of D. W. 1 (Item No. 1 of B Schedule and other Items ). Originally, the plaintiff instituted the suit as against the 1st defendant only who is her step son and also the sister's son of the plaintiff, the sister being the first wife of the said Appaswamy Reddy. The 2nd defendant is the daughter-in-law of the 1st defendant and she was brought on record subsequently as specified above. It is not in serious controversy that Appaswamy Reddy married the plaintiff as his second wife after the death of his first wife Rangamma and the said first wife is none other than the elder sister of the plaintiff. The stand taken by plaintiff/p. W. 1 is that her husband died in the year 1971 possessed of his self-acquired properties shown in plaint A, B and C Schedules and he had no ancestral properties. In view of the same, it is her specific case that after the death of her husband, both are entitled to equal shares. The stand taken by plaintiff/p. W. 1 is that her husband died in the year 1971 possessed of his self-acquired properties shown in plaint A, B and C Schedules and he had no ancestral properties. In view of the same, it is her specific case that after the death of her husband, both are entitled to equal shares. On the contrary, the specific stand taken by the 1st defendant/d. W. 1, is that his father had ancestral property at thanepalle, H/o. Thimmareddigaripalle and he sold those properties and with the money he purchased A and B Schedule properties, except Item Nos. 6 to 10 of the plaint A Schedule and Item No. 2 of the plaint B Schedule and his further case is that those Items were his self-acquired properties purchased by him with his separate money. It is also his case that in the year 1955, when Appaswamy Reddy and P. W. 1 were living together, due to the misfortune, plaintiff/p. W. 1 developed illicit intimacy with Harijan Chengaiah and in view of the same at the intervention of elders and according to the custom prevailing in the community, the marital tie was put an end to in 1955 itself. It is also the case of the 1st defendant as D. W. 1 that she left this District once for all to Kurnool district wherein she got herself married to one Venkata Subba Reddy, a resident of Nalla Kalva village of the said District. Thus, she never returned to the suit village and in fact she begot two daughters also by name Chowdeswari and nagendramma through the said Venkata Subba Reddy and thus virtually she had abandoned all her rights, if any, and she is not entitled to claim any share in these properties and even otherwise he has been in continuous possession and enjoyment of these properties for more than the statutory period openly, continuously and without interruption whatsoever and perfected his title by adverse possession as well. ( 12 ) APART from the evidence of P. W. 1, the evidence of P. W. 2, P. W. 3, p. W. 4 and P. W. 5 is available on record. P. W. 2 is a resident of thimmareddigaripalli and P. W. 3 is a resident of Baitapalli, P. W. 4 is a resident of Talapalapalli near Baitapalle. ( 12 ) APART from the evidence of P. W. 1, the evidence of P. W. 2, P. W. 3, p. W. 4 and P. W. 5 is available on record. P. W. 2 is a resident of thimmareddigaripalli and P. W. 3 is a resident of Baitapalli, P. W. 4 is a resident of Talapalapalli near Baitapalle. A resident of Nalla Kalva was examined as p. W. 5 and no doubt this witness was examined to establish that the plaintiff/p. W. 1 is not the wife of Venkata Subba Reddy of Nalla Kalva and that his wife is one Lakshmamma. Ex. A. 1 was filed during the course of cross- examination of D. W. 1 which is the registration copy of the settlement deed executed by her father Mekala Venkata Reddy in favour of Appaswamy Reddy. ( 13 ) ON behalf of the defendants, D. W. 1 to D. W. 15 were examined. D. W. 1 is the 1st defendant himself and D. W. 4 is the 2nd defendant. It is needless to say that D. W. 4 had deposed in detail relating to Item Nos. 15 to 18 and these sale transactions and had taken a stand that these are her separate properties. D. W. 2 and D. W. 3 are the elders who were aged 70 years or even more. These witnesses deposed in relation to the divorce between the plaintiff/p. W. 1 and Appaswamy reddy and specifically these witnesses deposed about the removal of Thali and bangles of the plaintiff/p. W. 1 and the elders asking her to leave the village. D. W. 5 to D. W. 11 are the creditors who were examined to show that certain amounts had been borrowed by D. W. 1 for the purpose of developing the lands of Appaswamy reddy got by 1st defendant/d. W. 1 after his death. These documents are marked as exs. B-17 to B-26. D. W. 12 and D. W. 13 of Nalla Kalva and D. W. 14, a resident of a nearby village of Nalla Kalva, were examined, to establish the marriage between the plaintiff/p. W. 1 and Venkata Subba Reddy of Nalla Kalva and those two living there as husband and wife for more than 30 years. These witnesses also deposed about the said Venkata Subba Reddy and the plaintiff/p. W. 1 begetting two children out of the marital tie. These witnesses also deposed about the said Venkata Subba Reddy and the plaintiff/p. W. 1 begetting two children out of the marital tie. D. W. 15 is the son of the plaintiff's elder brother Sidda Reddy and the registration copy of the settlement deed executed by the plaintiff in his favour was marked as Ex. B-37. The stand taken by the defendants is that this witness is inimical towards the 1st defendant since there is a suit pending O. S. No. 247/82, on the file of Principal District Munsif, chittoor, between these parties. Ex. B. 1 is the original sale deed dated 5-11-1932 executed by Chengal Reddy in favour of Paturu Muni Reddy in respect of certain properties of Thenepall. The case of the defendants is that Appaswamy reddy in his early days was being called as Chengal Reddy and that the vendor under Ex. B. 1 is Appaswamy Reddy himself, shown by his alias name Chengal Reddy. Though P. W. 1 had denied the same, in the light of all the facts and circumstances, positive findings had been recorded by the learned Judge in this regard. Ex. B. 2 is the sale deed in favour of Appaswamy Reddy for purchase of item No. 4 of plaint A Schedule. After selling the properties in 1932, it is stated that with the said money Appaswamy Reddy purchased properties covered by ex. B. 2. Ex. B. 3 also is another sale deed in favour of Chengal Reddy s/o. Sidda reddy. This Chengal Reddy is none other than Appaswamy Reddy as can be seen from the description of the document. Ex. B. 3 is dated 25-1-1935, ex. B. 4 registered sale deed is dated 15-6-1943 and Ex. B. 5 registered sale deed is dated 20-8-1956. Likewise, the other documents relied upon Exs. B-6, B-7, B- 8, B-9 and B-10 are the registered sale deeds dated 10-7-1987, 26-7-1971, 26-7- 1971, 30-10-1980 and 5-12-1980. Exs. B-11 and B-12 are the registered sale deeds dated 4-2-1984, 6-8-1984, 12-3-1984 in favour of the 2nd defendant. It is needless to say that the stand taken by the respondents/defendants is that these are the separate properties of the 2nd defendant. Ex. B-16 is the attested promissory note. Exs. B-17 to B-25 are the different promissory notes. Ex. B-26 is renewal promissory note. Exs. B-27 and B-28 are the loan applications. Ex. B-29 is the voters list and Ex. Ex. B-16 is the attested promissory note. Exs. B-17 to B-25 are the different promissory notes. Ex. B-26 is renewal promissory note. Exs. B-27 and B-28 are the loan applications. Ex. B-29 is the voters list and Ex. B-30 is the electoral roll. Ex. B-31 is the enumeration slip. Ex. B-32 is addition to the voters list. Ex. B-33, is the voters list of Nalla Kalva. Ex. B-34 is the notice by Corporation Bank issued to d. W. 1. Ex. B-35 is the death register extract of Appaswamy Reddy. Ex. B-35 was relied upon to show the actual date of death of Appaswamy Reddy. The date of death shown in Ex. B-35 is 1-9-1968, but there is some controversy relating to the same - the plaintiff/p. W. 1 ascertaining that the date of death was in the year 1971. But however, in the light of Ex. B-35, positive findings had been recorded in this regard by the learned Principal Subordinate Judge, Chittoor. Ex. B-36 is a copy of the plaint in O. S. No. 247/82 on the file of Principal district Munsif, Chittoor and Ex. B-37 is the registered settlement deed dated 7- 4-1986. ( 14 ) STRONG reliance was placed on the decisions of the Apex Court in harihar Prasad Vs. Balmiki Prasad wherein the Apex Court while dealing with the proof of family custom in Hindu Law, observed : "the specific family custom pleaded in a particular case should be proved. The initial onus lies on the plaintiffs to prove the special custom. It must be proved that the custom has been acted upon in practice for such a long period and with such invariability, as to show that it has, by common consent been submitted to as the established governing rule of the particular family. " ( 15 ) IT is no doubt true that except the evidence of D. W. 2 and D. W. 3 relating to the episode of the customary divorce or putting an end to the marital tie, there is no other evidence available on record. The age of these witnesses had been taken into consideration and positive findings had been recorded by the learned Principal Subordinate Judge, Chittoor. The age of these witnesses had been taken into consideration and positive findings had been recorded by the learned Principal Subordinate Judge, Chittoor. The important aspect which may have to be seriously considered is not only the episode of the year 1955, but the subsequent events which had been clearly established by the voluminous oral and documentary evidence placed on record on behalf of the respondents/defendants. On a careful analysis of the evidence available on record, the following are certain of the essential aspects to be taken into consideration: There is absolutely no acceptable evidence placed before the court except some oral testimony that after the episode of 1955 at any point of time plaintiff/p. W. 1 had any contact or the family relationship with these family members. Virtually the evidence is clear that she had abandoned all her rights, if any and left the village once for all and for reasons best known, after a long lapse of time, there appears to be some attempt made to show that she had something to do with this family or this village. In the light of the clear findings recorded by the learned Subordinate Judge, Chittoor, this Court is of the considered opinion that there cannot be any two opinions relating to this aspect. Apart from this aspect of the matter, yet another feeble attempt was made by letting in negative evidence that there was no marriage at all between the plaintiff/p. W. 1 and Venkata Subba Reddy and she never lived in Nalla kalva in Kurnool District by examining P. W. 5. The evidence of D. W. 1, well coupled with the evidence of D. W. 12, D. W. 13 and D. W. 14 and also the documentary evidence, the electoral rolls of the said village, Ex. B-29, B-30, B-31 and B-32, would amply establish this fact. Submissions at length were made relating to this aspect and reliance was placed on the decision of the Madras High Court in alagammal Vs. Rakkammal wherein it was held : "it is true that law does not favour concubinage, but the presumption is in favour of a marriage when a man and a woman are shown to have cohabited continuously for a long number of years, is a rebuttable one and can be destroyed or weakened by the presence of other circumstances. Rakkammal wherein it was held : "it is true that law does not favour concubinage, but the presumption is in favour of a marriage when a man and a woman are shown to have cohabited continuously for a long number of years, is a rebuttable one and can be destroyed or weakened by the presence of other circumstances. " ( 16 ) STRONG reliance was placed on the decision of this Court in nagarajamma Vs. State Bank of India wherein the learned Judge of this Court at para-8, observed : "the main contention of the learned Advocate General on behalf of the appellant was that as the appellant was continuously living with Ramaswami from 1935 there is a presumption that they were living as husband and wife and that the 1st defendant was not his concubine. There is no doubt that the presumption of law is in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a long number of years. Vide Mohabbat Ali v. Mohd. Ibrahim Khan (AIR 1929 P. C. 1935 ). This presumption is rebuttable as pointed by Fazl Ali, J. in Gokal Chand v. Parvin Kumari, AIR 1952 S. C. 231. The learned Judge observed as follows at page 233: "but the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weakens or destroy that presumption, the court cannot ignore them. " The same view was laid down by the Privy Council in an earlier case reported in ma Wun Di v. Ma Kin (18 Mad. L. J. 3 (P. C. ). The relevant observations are as follows : "it is necessary, before applying this presumption to make sure that we have got the conditions necessary for its existence. It is not superfluous to suggest that, first of all, there must be some body of neighbours, many or few, or some sort of public, large or small, before repute can arise. Again, the habit and repute, which alone is effective, is habit and repute of that particular status which, in the country in question, is lawful marriage. The difference between English and Oriental customs about the relations of the sexes make such caution especially necessary. Again, the habit and repute, which alone is effective, is habit and repute of that particular status which, in the country in question, is lawful marriage. The difference between English and Oriental customs about the relations of the sexes make such caution especially necessary. Among most English people, open cohabitation without marriage is so uncommon that the fact of cohabitation in many classes of society of itself sets up, as matter of fact, a repute of marriage. But, in countries where customs are different, it is necessary to be more discriminating, more especially owing to the laxity with which the word 'wife' is used by witnesses in regard to connexions not reprobated by opinion, but not constituting marriage. " But when a person is already married, no presumption of a second marriage arises by reason of long cohabitation. Vide S. A. No. 592 of 1921 dated 18th January 1924 : (46 Mad. L. J. (SN) 8 ). It is clear from the facts set out above that Ramaswami was already married to the 3rd defendant. Exhibit B-11 shows that the 1st defendant and her brother owned a Devadasi inam. The 1st defendant belongs to kalavanthula or dancing girl community. The evidence of D. W. 3, which I accept, is clearly to the effect that Ramaswami was keeping the 1st defendant as his concubine at Racherla and that he brought her later on to his residential house. I am inclined to hold on the facts of this case that the presumption of law is sufficiently rebutted. " ( 17 ) WHEN clear and positive evidence is available relating to the marriage in between the plaintiff/p. W. 1 and Venkata Subba Reddy and these parties living continuously for sufficiently a long time under the same roof and begetting children also, this would definitely point out and probabilise the episode of the year 1955 and in this backdrop the evidence of D. W. 2 and D. W. 3 cannot be discarded. In the light of these clear probabilities and also the circumstances and the long gap in between the episode of 1955 and the institution of the suit, the only irresistible conclusion at which this Court can arrive is that the 1st defendant is coming out with the true version relating to the episode of 1955. In the light of these clear probabilities and also the circumstances and the long gap in between the episode of 1955 and the institution of the suit, the only irresistible conclusion at which this Court can arrive is that the 1st defendant is coming out with the true version relating to the episode of 1955. Reliance also was placed on a decision of the division Bench of the Madras High Court in Jayalakshmi Vs. T. V. G. Iyer wherein it was held that the effect of Section 28 of the Hindu Succession Act 1956 r/w. Section 4 of the Act is that the unchastity of a widow has ceased to be a disqualification for succession after the Act came into force and a widow though unchaste can now succeed to the property of her son as his father's widow. The division Bench in fact distinguished the decision of the Full Bench of Madras high Court in Ramayya Vs. Mottayya. Reliance also was placed on Khagendra Nath vs. Karunadhar wherein the learned Judge of the Calcutta High Court observed : "reading the different provisions of the Hindu Succession Act and specially Sections 4 and 28 there is no doubt that except the disqualifications mentioned in Sections 24, 25 and 26 any other disqualification which existed in the Hindu Law has been removed by the Hindu Succession Act. As unchastity of a widow has not been mentioned as a disqualification in Sections 24 to 26, it must be deemed that her unchastity is no longer a disqualification for her succeeding to the property of husband. " ( 18 ) THIS Court need not dwell deep upon the question whether unchastity would operate as a bar to succeed to the property left by the husband, the reason being, on a careful analysis of the whole evidence available on record, it is clear that the plaintiff/p. W. 1 having left the family in the year 1955, had been continuously living with Venkata Subba Reddy at Nalla Kalva in Kurnool district which is far away from Chittoor District. There is no acceptable evidence to show that she had been exercising any kind of rights whatsoever over the family properties at any point of time during the long gap and for reasons best known, after a long lapse of time, she reappeared on the scene and had instituted the present suit. There is no acceptable evidence to show that she had been exercising any kind of rights whatsoever over the family properties at any point of time during the long gap and for reasons best known, after a long lapse of time, she reappeared on the scene and had instituted the present suit. The plaintiff/p. W. 1 having abandoned all her rights and having left the family once for all and having been under the roof of another, Venkata Subba Reddy, and having begot children, now turning around and contending that inasmuch as unchastity is not a bar and further since the evidence of D. W. 2 and D. W. 3 may not be sufficient to establish the defence, she is entitled for a share, in the considered opinion of this Court, are unsustainable submissions and the said contentions are liable to be rejected and accordingly they are hereby rejected. This Court is thoroughly satisfied that both in Law and also in equity, the appellants are not entitled to any of the reliefs prayed for. The learned Principal Subordinate Judge, Chittoor had taken pains and recorded findings in detail appreciating the oral and documentary evidence available on record in proper perspective. The mere fact the evidence of D. W. 2 and D. W. 3 is insufficient, by itself cannot be a ground to disbelieve the version of the 1st defendant/d. W. 1. In the light of the findings recorded, no further detailed findings need be recorded in relation to 'whether Item nos. 15 to 18 of the plaint A Schedule standing in the name of the 2nd respondent/2nd defendant are her separate properties or the properties of the family'. Hence, this Court is not inclined to express any further opinion relating to the said aspect. Accordingly, the findings recorded by the learned principal Subordinate Judge, Chittoor are hereby confirmed. ( 19 ) POINT No. 4: In the light of the findings recorded above, the Appeal being devoid of merit, the same shall stand dismissed. Whatever may be the bad blood between the parties, even otherwise since the plaintiff/p. W. 1 is closely related to the 1st defendant/d. W. 1, the parties to the litigation to bear their own costs.