Karnataka High Court
Lakshmamma vs Kamalamma And Others on 5 September, 2000
Equivalent citations: AIR2001KANT120, II(2001)DMC242, ILR2000KAR3837, 2001(2)KARLJ470, AIR 2001 KARNATAKA 120, 2000 AIR - KANT. H. C. R. 211, (2000) ILR (KANT) 3837, (2001) 2 DMC 242, (2001) 2 HINDULR 361, (2001) 2 KANT LJ 470, (2002) 1 MARRILJ 187
Author: K. Sreedhar Rao
Bench: Tirath S. Thakur, K. Sreedhar Rao
JUDGMENT K. Sreedhar Rao, J.
1. This appeal is filed against the judgment and decree dated 11-1-1993 passed by the learned IX Additional City Civil Judge, Bangalore City, in O.S. No. 1138 of 1985, wherein, the suit of the plaintiff for partition and separate possession came to be dismissed. Being aggrieved, this appeal is filed,
2. The facts leading to this appeal are stated thus:
The plaintiff claimed to be the daughter of one late Mallappa, born through one Nanjamma, the first wife of late Mallappa. The first defendant is said to be the second wife of late Mallappa. Out of the wedlock with the first defendant, Mallappa did not have any issues. The second defendant is the sister of the plaintiff. Mallappa died on 21-1-1985. Defendants 3 to 10 are the tenants in the property belonging to the deceased Mallappa. The plaintiff claiming to he the daughter of late Sri Mallappa, filed the suit claiming l/3rd share in the suit schedule properties. The first defendant has seriously contested the suit in the written statement, denied the relationship of the plaintiff and the second defendant as the daughter of Late Mallappa. It is also contended that, the immovable properties shown in the plaint schedule at Serial Nos. 1, 2, 4, 5, 7 and 8 are the self-acquired properties of the first defendant, as such, the plaintiff is not entitled to any share.
3. The Trial Court on the facts and disputed contentions, formulated the following issues for consideration:
(1) Whether the plaintiff proves that Nanjamma was the legally wedded wife of late Mallaiah and the plaintiff and the second defendant are their children?
(2) Whether the plaintiff proves that the suit properties are the properties of late Mallaiah and are in joint possession of plaintiff and defendants 1 and 2?
(3) Whether the plaintiff proves that she is entitled to l/3rd share in the suit properties including rents and entitled to partition and separate possession of them?
(4) Whether the first defendant proves that Items 1, 2, 4, 5, 7 and 8 and fixed deposit amount are her self-acquired properties?
(5) Whether the plaintiff proves that she is entitled for mesne profits?
(6) What reliefer order?
4. In evidence, the plaintiff has examined herself and examined three witnesses. The first defendant has examined herself and examined two witnesses. The Trial Court has held that the plaintiff has failed to prove that she is the daughter of Mallappa and failed to prove the marriage of her mother Nanjamma with Mallappa and thus, answered issue No. (1) in negative and held that, consideration of other issues would not arise for consideration and thus dismissed the suit. Being aggrieved, this Appeal is filed.
5. The Trial Court, for the following reasons, answered issue No. (1) in the negative:
(i) That the oral evidence with regard to marriage of Nanjamma is discrepant, Date of marriage is not established. Marriage Invitation Card not produced. Witnesses do not speak about the performance of customary rituals for valid marriage.
(ii) On Ex. P. 1-the Death Certificate of Nanjamma, it is held that the name of the deceased and her husband cannot be considered as the one pertaining to Nanjamma, the mother of the plaintiff. In Ex. P. 1, the name of the deceased is described as Chinnananjamma and the name of the husband is described as Mallaiah.
Whereas, the plaintiff, in her pleadings describes her father as Mallappa.
6. In view of the said discrepancies, the Trial Court comes to the conclusion that the said document cannot be related with the parents of the plaintiff.
7. After carefully going through the oral and documentary evidence, relied on by the parties, it appears that the Trial Court has committed grave error in not properly appreciating the oral and documentary evidence. The perceptions and the view of the Trial Court regarding the requisite proof of marriage, evidence with regard to observance of the rituals, supposition of the printing of invitation cards, exact date of marriage, appears to be a perverse view. If the evidence with regard to the marriage which is celebrated in the recent past is called to be proved, one could expect clinching evidence. The marriage which had taken place several decades ago, if one is called to establish, it is by and large, only by oral evidence, the factum of marriage can be established. The persons who have seen the marriage and seen the couple living as husband and wife in the society are all the necessary admissible aspects in evidence which the Court has to take into consideration. Obviously, the children who are born after marriage cannot be expected to testify to the details of the marriage. It is only the contemporaries of the parents who have seen the marriage and seen the persons living as husband and wife and begetting children, can competently testify to the said facts.
8. The evidence of P.Wa. 2 to 4 clinchingly disclose that Mallappa was married to Nanjamma and that the plaintiff and the second defendant are born out of the wedlock of Mallappa with Nanjamma. P.W. 2 is a native of [Mallasandra], Gowribidanur Taluk, from which place, Mallappa is said to have migrated and settled in Mallasandra, Yeshwan-thapura Hobli, Bangalore. P.W. 2 testifies that he attended the marriage and that the plaintiff and the first defendant are born oat of the wedlock. Mallappa, to eke out his livelihood, migrated to Yeshwanthpur, Bangalore, along with his wife and children and was doing milk vending business.
9. P.W. 3, one Akkayamma, a native of Mallasandra near Yeshwan-thapur, stated that, Mallaiah is a neighbour living in a rented premises along with his wife Nanjamma and the plaintiff and the first defendant are the daughters and that he was doing milk vending business. In the cross-examination, she states that, Nanjamma fell ill. She died in her native village Cholasamudra and thereafter, her daughters went to their mother's native place and they were married.
10. P.W. 4 is one T. Muniswamaiah, a native of Mallasandra near Yeshwanthapur. His evidence also corroborates the theory that Nanjamma was the first wife of Mallaiah and he migrated to Mallasandra near Yeshwanthapur. He was living along with his wife and children and was doing milk vending business. In the cross-examination of this witness, nothing substantial is elicited to impeach the veracity. In the evidence of D.W. 3, one Chikkabylamma, a native of Mallasandra, Yeshwanthpur, she implicitly admits that Nanjamma was married to Mallappa.
11. In the decision of the Madras High Court in Nizampatnam Na-gachari v Kondiparti Butchayya (dead) and Anotlier, it has been held thus:
"The presumption to be drawn in favour of marriage from cohabitation will have to vary from country to country or society to society, where concubinage is permitted or recognised or where even it is not expressly permitted it is winked at or condoned by the society to which the parties belong, the presumption in favour of marriage becomes weak. But where it is established by evidence that a man and woman were not merely living together but professed themselves to be husband and wife and were treated as such by the society in which they moved and this conduct and recognition extended over a sufficiently long period of time, a presumption can well be drawn in favour of marriage".
12. In the decision of Gokal Chand v Parvin Kumari, it has been held thus:
"It is well-settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Rama Piari lived and were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion, a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them".
13. In Raghuvir Kumar (minor) by next friend and Mother Smt. D.P. Kamalakumari and Another v Smt. Shanmughauadivu and Others, a detailed reference of various authorities of precedents is elaborately referred to regarding the presumption of relationship of husband and wife from a long cohabitation as such. In para 27 of the said judgment, the extract from Halsburys "Laws of England" (19), III Edition, page 812, paragraph 1323 is given, which reads thus:
"Where a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will generally be presumed, though there may be no positive evidence of any marriage having taken place, and the presumption can be rebutted only by strong and weighty evidence to the contrary",
14. Therefore, from the above authorities, it is clear that, if a man and woman professing to be husband and wife, cohabited for a long length of time and if the Society has recognised their relationship, a presumption would arise that they are legally wedded wife and husband. The western perception with regard to presumption on the point is not very much different from the perceptions entertained in Indian context by precedent law laid down by the Supreme Court and the other High Courts.
15. In the accepted background of legal position, we are of the view that it is a fit case where the presumption has to be invoked regarding valid marriage between Mallappa and Nanjamma in view of the unassailable oral evidence adduced by the plaintiff.
16. The Trial Court has also erred in not appreciating with proper perspective the contents of Ex. P. 1. The name of Nanjamma as Chin-nananjamma and her husband Mallappa as Mallaiah in the Death Certificate cannot be doubted as not pertaining to the mother of the plaintiff and second defendant. After all, in the rural lifestyle, the illiterate mass in the parts of Karnataka and Andhra Pradesh, to the personal names, sometimes for convenience, will have prefixes like Chinna and Pedda, means Younger and Elder. When there are two or more persons with similar names in the family, for proper identification such prefixes to the names are assigned, which would be like alias name, so also, the suffixes Aiah or Appa to the personal name is freely used with inter-change not making any distinction in identity in rural parts. The rural ethos in this regard, the Trial Court has failed to appreciate with reference to the contents of Ex. P. 1. Therefore, under the circumstances, we are of the view tbat the finding of tbe Trial Court on issue No. (1) has to be set aside and deserves to be answered in the affirmative.
17. The Trial Court also erred in not considering and deciding issue Nos. (2) to (5). Under Order 20, Rule 5 it is mandatory that the Court shall state its finding or decision with reasons thereof upon each separate issue and all the distinct issues have to be answered by the finding supported by reasons. The exceptional situation is provided under Order 14, Rule 2 where an issue relating to the jurisdiction or a bar to a suit created by any law for the time arises for determination and if Court can once and for all dispose of the case with reference to the said issues only. In such a situation, the Court is entitled to postpone the settlement of other issues only after that issue has been determined and may deal with the suit in accordance with the decision on the said preliminary issues. In the instant case, issue No. (1) obviously cannot be considered as one covered by the purview of Order 14, Rule 2.
18. Therefore, under the circumstances, we are of the view that the matter has to be remanded for determination of issue Nos. (2) to (5) and if necessary, the Trial Court shall give opportunity to tbe parties to lead fresh evidence on issue.Nos. (2) to (5), without going into the finding recorded in this Appeal on issue No. (1) afresh.
Accordingly, the Appeal is partly allowed. The matter is remanded to the Trial Court for fresh disposal as per the observations given supra.
The parties shall bear their own costs.
Court fee paid shall be refunded to the appellant.