Karnataka High Court
Shivananju @ Shivananjegowda vs Smt Chikkaboramma on 22 June, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR SECOND APPEAL NO.2021 OF 2007 (PAR)
BETWEEN:
SHIVANANJU @ SHIVANANJEGOWDA
S/O KULLA-NANJEGOWDA
AGED ABOUT 75 YEARS
R/O M.SHETTIHALLI VILLAGE
K. SHETTIHALLI HOBLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT-571 438.
...APPELLANT
(BY SRI K.N.NITISH NARASIMHAN, ADVOCATE)
AND:
1. SMT. CHIKKABORAMMA
W/O SHIVANANJEGOWDA
AGED ABOUT 54 YEARS
R/AT KAPARANAKOPPALU VILLAGE
K. SHETTIHALLI HOBLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT-571 438.
2. SANNAMMA
DECEASED, REPRESENTED BY HER
LRS
RESPONDENTS 1 AND 3 ARE
DAUGHTERS/LEGAL HEIRS OF
RESPONDENT 2, ARE ALREADY ON
RECORD.
2
3. SMT. DODDABORAMMA
W/O SHIVANANJU @
SHIVANANJEGOWDA
AGED ABOUT 56 YEARS
R/O M. SHETTIHALLI VILLAGE
K SHETTIHALLI HOBLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT-571 438.
....RESPONDENTS
(BY SRI S. RAJASHEKAR, ADVOCATE FOR R1;
R3 - SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100
OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.04.2007
PASSED IN R.A.NO.19 OF 2006 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE (SR.DN.) AND JMFC, SRIRANGAPATNA, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED
24.12.2005 PASSED IN O.S.NO.42 OF 2002 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE (JR.DN.) SRIRANGAPATNA, DECREEING THE
SUIT FOR PARTITION, SEPARATE POSSESSION.
IN THIS REGULAR SECOND APPEAL ARGUMENTS HAVING
BEEN HEARD AND RESERVED ON 08.06.2023, COMING ON FOR
"PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
1. In this appeal, the defendant No.3 has challenged Judgment and Decree dated 02.04.2007 in R.A. No.19/2006, on the file of Principal Civil Judge (Sr. Dn.) and JMFC at Srirangapatna, confirming the Judgment and Decree dated 3 24.12.2005 on the file of Civil Judge (Jr. Dn.) and JMFC at Srirangapatna, in O.S. No.42/2002, decreeing the suit of the plaintiff.
2. For the sake of convenience, parties are referred to with reference to their rank before the Trial Court.
3. It is the case of the plaintiff that, original propositor late Boraiah had two sons namely Boregowda @ Dodda Sooregowda and Kempegowda @ Chikka Sooregowda. The schedule property fallen to the share of Kempegowda (second son of late Boraiah). Defendant No.1 is wife of the said Kempegowda. Plaintiff and defendant No.2 are daughters of said Kempegowda. Defendant No.3 is the husband of defendant No.2. It is the case of the plaintiff that suit schedule properties are the joint family properties of plaintiff and defendants, and accordingly made a claim for partition and separate possession and same was refused by the defendant No.3. Hence, plaintiff filed O.S. No.42/2002 on the file of Trial Court seeking partition and separate possession in respect of suit schedule properties.
4. On service of notice, defendant Nos.1 and 3 filed written statement, denying the averments made in the plaint. 4
5. It is the specific case of the defendant No.3 that, the defendant No.3 was adopted illiatom of the defendant No.1 and as such, the plaintiff is entitled for 1/16th share and not 1/3rd in the suit schedule properties and accordingly, sought for dismissal of the suit.
6. Based on pleadings on record, the Trial Court framed issues for its consideration. In order to establish their case, plaintiff has examined three witnesses as P.W.1 to P.W.3 and got marked thirteen documents as Exs.P1 to P13. Defendants have examined six witnesses as D.W.1 to D.W.6 and got marked thirtythree documents as Ex.D1 and Ex.D33. The Trial Court, after considering the material on record, by its Judgment and Decree dated 24.12.2005, decreed the suit holding that the plaintiff is entitled for 1/3rd share in the schedule properties. Feeling aggrieved by the same, defendant No.3 has preferred R.A. No.19/2006 before the First Appellate Court and the said appeal was resisted by the plaintiff. The First Appellate Court, after re-appreciating the material on record, dismissed the appeal and as such, confirmed the Judgment and Decree passed by the Trial Court. Being aggrieved by the Judgment and Decree passed by Courts below, the present appeal is preferred by the defendant No.3.
5
7. This Court, vide order dated 24.06.2010 framed the substantial questions of law which read as under:
"(1) Whether the Judgment and Decree of both the Courts below are perverse in mis-application of the Hindu Succession Act?
(2) Whether the Judgment and Decree of both the Courts below are perverse in decreeing the suit contrary to the material evidence on record? "
8. I have heard Sri. K.N. Nitish, learned counsel appearing for the appellant and Sri. S. Rajashekar, learned counsel for the respondent No.1.
9. Sri. K.N. Nitish, learned counsel appearing for the appellant, contended that, the appellant / defendant No.3 was adopted by defendant No.1 as illatom son-in-law and in this regard, Ex.D2 was produced before the Courts below and the said aspect was not considered by both the Courts below. He further contended that, father of the plaintiff - Kempegowda died before the passing of the Hindu Succession Act, 1956 and therefore, plaintiff is not entitled for share in the schedule properties.
10. Per contra, Sri. S. Rajashekar, learned counsel appearing for the respondent sought to justify the impugned orders. 6
11. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the records. Perusal of the records would indicate that, the original propostius Boraiah had two sons, namely, (i) Boregowda @ Dodda Sooregowda and Kempegowda @ Chikka Sooregowda. The schedule property fallen to the share of Kempegowda (second son of late Boraiah). Defendant No.1 is wife of the said Kempegowda. Plaintiff and defendant No.2 are daughters of said Kempegowda. Defendant No.3 is the husband of defendant No.2. The genealogical tree reads as follows:
BORAIAH BOREGOWDA @ KEMPEGOWDA @ DODDASODEGOWDA CHIKKASODEGOWDA SANNAMMA (1ST Defendant) SHIVANANJU DODDABORAMMA CHIKKABORAMMA (3rd Defendant) (2nd Defendant) (Plaintiff)
12. The controversy to be answered in this appeal is, whether the third defendant is the illatom son-in-law of defendant No.1. In this regard, I have carefully examined the written statement 7 whereby the defendant No.3 has stated that, he was in adoption as illatom son-in-law, however, whether the custom of adoption of illatom son-in-law is prevailing in the locality was not forthcoming in the written statement. It is well settled principle in law that, if the person claims relief under a customary law, then, it is the duty of such person to prove the existence of such customary practice in the locality. It is to be inferred that, plaintiff is also the daughter of defendant No.1. In that view of the matter, to make a claim for major share in the schedule properties, the defendant No.3 ought to have pleaded and proved the existence of customary practice in the locality. In this regard, it is relevant to cite the Judgment of the Hon'ble Supreme Court in the case of YAMANAJI H. JADHAV Vs. NIRMALA, reported in (2002) 2 SCC 637. Paragraph No.7 reads as under:
" 7. In the view that we are inclined to take in this appeal, we do not think it is necessary for us to go into the contentions advanced by the learned counsel for the parties in this case, because we find that the courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable for divorce in the community to which the 8 parties to this litigation belong to. As per the Hindu law administered by courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since the said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleadings by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the court. In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true that in the courts below the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the 9 document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of there not being a customary divorce based on which the document of divorce has come into existence bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion to do complete justice in this case it is necessary that the trial court be directed to frame a specific issue in regard to customary divorce based on which the divorce deed dated 26-6-1982 has come into existence and which is the subject-matter of the suit in question. In this regard, we permit the parties to amend the pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce (otherwise through the process of or outside court) in their community and then test the validity of the divorce deed dated 26-6- 1982 based on the finding arrived at in deciding the new issue."
13. It is also relevant to extract the observation made by the Hon'ble Supreme Court at paragraph 21 in the case of RAM 10 SWAROOP AND ANOTHER Vs. MAHINDRU AND OTHERS reported in (2003) 12 SCC 436.
" 21. A reading of the above documents coupled with the specific averment made in the written statement and of the oral evidence of Smt Gangi and others clearly establishes the custom pleaded by the defendants in the written statement. It is a settled law by a catena of decisions of this Court and also of the other High Courts that a custom must be pleaded and proved. In the instant case, the defendants have specifically pleaded the custom prevalent in the community in the area in question and also proved beyond any reasonable doubt in regard to the said custom and the inheritance of the property by Bala Ram and the enjoyment of the same by him till his death and thereafter, the appellant-defendants' right to inherit the said property."
14. It is relevant to cite the Judgment of the Hon'ble Supreme Court in the case of T. SARASWATHI AMMAL Vs. JAGADAMBAL AND another reported in AIR 1953 SC 201. Paragraph No. 7 reads as under:
"7. It is unnecessary to examine the plaintiff's evidence in detail. Suffice it to say that it is more than sufficient to rebut the evidence led by the defendant and it neutralizes its effect, if any. In the absence of proof of existence of a custom governing succession the decision 11 of the case has to rest on the rules of justice, equity and good conscience because admittedly no clear text of Hindu law applies to such a case. The High Court thought that the just rule to apply was one of propinquity to the case, according to which the married and dasi daughters would take the mother's property in equal shares. No exception can be taken to this finding given by the High Court. No other rule was suggested to us leading to a contrary result."
15. Hon'ble Supreme Court had an occasion to consider the similar issue in the case of SHAKUNTALABAI AND ANOTHER Vs. L.V. KULKARNI AND ANOTHER reported in (1989) 2 SCC 526. Paragraphs 19 and 20 therein read as under:
"19. In Edwards v. Jenkins [(1896) 1 Ch D 308] the characteristics of a valid custom are stated. They are, that it must be of immemorial existence, it must be reasonable, it must be certain and it must be continuous. Every custom must have to be in existence preceding memory of man and if the proof was carried back as far as living memory would go, it should be presumed that the right claimed had existed from time of legal memory. This was reiterated in Mohd. Ibrahim v. Shaik Ibrahim. In Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar, it was held that it was the essence of special usages modifying the ordinary law, (in that case of succession) that they should be ancient and invariable; it is further essential that they should be established to be so, by clear and unambiguous evidence and that it is only by means of such findings 12 that the courts can be assured of their existence and that they possess the conditions of antiquity and continuity and certainty on which alone their legal title to recognition depends. Custom must be proved and the burden of proof is on the person who asserts it.
20. The Privy Council in Raja Rajendra Narain v. Kumar Gangananda held that after the existence of a custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence and it is for this reason that such an evidence is allowable as an explanation to the general rule. In D.C., Bara Banki v. Receiver of the Estate of Choudhry, it has been held that breach of a custom in a particular instance need not destroy it for all times. In Effuah Amissah v. Effuah Krabah, it was held that material customs must be proved in the first instance by calling witnesses acquainted with them until a particular custom has by frequent proof in the court become so notorious that the courts take judicial notice of it. A custom cannot be extended by logical process. In Saraswati v. Jagadambal, it has been held that oral evidence as to instances which can be proved by documentary evidence cannot be fairly relied upon to establish custom when no satisfactory explanation for withholding the best evidence is given. Custom cannot be extended by analogy and it cannot be established by a priori method. Uzagar Singh v. Mst. Jeo, laid down that the ordinary rule is that a custom, general or otherwise, has to be proved under Section 57 of the Evidence Act. However, nothing need be proved of which the courts can take judicial notice. When a 13 custom has been judicially recognised by the court then it passes into the law of the land as proof of it becomes unnecessary under Section 57(1) of the Evidence Act. "In regard to marriage", says Sir Gooroodas Bannerjee, "the ordinary Hindu law does not, and cannot, form the common rule for all sects alike".
16. Following the declaration of law referred to above, I have carefully examined the finding recorded by the Trial Court on issue No.3. Perusal of the deposition of D.W.2 dated 29.09.2005 reads as under:
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(emphasis supplied)
17. On re-appreciating the evidence of D.W.2, I am of the view that, the defendant No.3 fails to establish that he was taken as illatom son-in-law by defendant No.1 and no independent witnesses were examined to prove the said fact and therefore, I do not find any illegality or perversity in the impugned Judgment and Decree passed by both the Courts below. It is well established principle in law that, mere production of an agreement to prove an illatom son-in-law does not itself confer on the illatom son-in-law but it has to be proved beyond reasonable doubt that said customary practice was prevailing in the locality and both the Courts below after appreciating the 15 entire material on record, have rightly come to the conclusion that defendant No.3 has not proved that he was illatom son-in- law of defendant No.1 and in that view of the matter, the substantial questions of law framed above favours the plaintiff. In the result, the appeal is rejected confirming the Judgment and Decree passed by the Courts below.
18. Consequently, pending I.As. do not survive for consideration.
SD/-
JUDGE sac*