RATHNAMMA & ORS. versus SUJATHAMMA & ORS. on 15 November 2019

1. Defendant No.2, defendant No.5 and legal heirs of defendantNo.4 are in appeal aggrieved against the judgment passed by High Courtof Karnataka on 3[rd] April, 2008 dismissing their second appealmaintaining the judgment and decree passed by the First Appellate Courton 2[nd] July, 2005 whereby the suit for partition filed by plaintiffSujathamma was decreed.

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A2. The following Genealogical Tree would be necessary toappreciate the dispute between the parties:- “GENEALOGICAL TREE

Sonnappa(Defendant No. 1)BSonDaughterDaughterDaughterCHanumanthappaSonnammaKenchammaLakshmamma(dead)(Def No. 1(a))(Def No. 1(b))(Def No. 1(c))(*Sujathamma is the daughterof Muniyappa and Sonnamma)DSonRathnammaVenkatarayappa(Def No. 2)(dead)EGowrammaRajappaNaryanaswamy(Def No. 3)(Def No. 4)(Def No. 5)Note :

*Sujathamma claims to be married to Hanumanthappa.”F

3. Defendant No. 1 Sonnappa died during the pendency of thesuit leaving behind two sons - Venkatarayappa and predeceased son -Hanumanthappa and three daughters - Sonnamma, Kenchamma andLakshmamma. Sonnamma, Kenchamma and Lakshmamma have beenbrought on record as legal heirs of defendant No. 1. The plaintiff -GSujathamma, maternal grand-daughter of Sonnappa, claims to havemarried Hanumanthappa on 7[th] March, 1986. Hanumanthappa diedon 15[th] October, 1986. The claim of the plaintiff is that she isentitled to the share of the estate of Sonnappa, as wife of deceasedHanumanthappa. It is the said assertion which was accepted by theHFirst Appellate Court and maintained by the High Court.

4. The plaintiff filed the civil suit with the assertion that the partiesare related to each other as members of joint Hindu Undivided Family.The plaintiff asserted that the first defendant i.e. Sonnappa is herfathter-in-law. Since the property is said to be ancestral property andthat property stands in the name of the first defendant Sonnappa,therefore, plaintiff claims that she is entitled to the share ofHanumanthappa as his wife.

5. The daughter of the first defendant was married to the fatherof the plaintiff. The stand of the defendants is that the father of theplaintiff managed to obtain signatures of the first defendant by way ofmalafide practices and that the first defendant never consented for themarriage of his second son Hanumanthappa as he was suffering fromjuvenile diabetes mellitus coma, cardio respiratory arrest and such othersymptoms. The plaintiff was about 14 years of age at the time of deathof Hanumanthappa and that she was not fit for marriage. It wasasserted that if any document is produced by the plaintiff to show thatshe was married, it is a concocted one. By way of a separate writtenstatement, defendant Nos. 2 to 5 denied the allegations of the plaintiff.It was pleaded as under:

“12. The plaintiff is not entitled to any reliefs. The true facts ofthe case are that the plaintiff is grand daughter of first defendantand the plaintiff’s mother, first defendant and plaintiff colludedwith each other and they have filed this suit in order to grab theproperties, the plaintiff is not at all wife of the said lateHanumanthappa. Even as on the date of the death of saidHanumanthappa, the said plaintiff was aged about 14 years. Eventhe said Hanumanthappa was also suffering from JuvenileDiabetes Mellitus coma, Cardio respiratory arrest and such othersymptoms. Even he was not in position to marry or to giveconsent for marriage since 6 years and never marriage of theplaintiff with late Hanumanthappa had been taken place.”

6. The parties went to trial with one of the issues being whetherthe plaintiff is wife of late Hanumanthappa. To prove the said issue,the plaintiff examined herself as PW-1. PW-2 is the father of the plaintiffwhereas PW-3 to PW-5 are the witnesses of an agreement to marriagedated 7[th] March, 1986, who were examined to prove plaintiff’s marriagewith Hanumanthappa. PW-6 was examined to prove the age of thedeceased Hanumanthappa. PW-7 to PW-9 are the daughters of AB

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Adeceased defendant No. 1. As per the birth certificate (Ex.P/30), thedate of birth of Hanumanthappa is 20[th] June, 1966, that makes him 19years 9 months at the time of his marriage. On the other hand, theplaintiff in her statement stated her age as 15 years at the time ofmarriage. However, the defendants have produced Ex.D/3, Registerof Admission of the School, by confronting PW-6, Headmaster of theBSchool. As per Ex.D/3, the plaintiff was born on 5[th] June, 1975. Asper the plaintiff, an agreement of marriage was registered on 7[th] March,1986. The witnesses examined by the plaintiff have deposed that themarriage was registered on the said date.

7. Admittedly, Hanumanthappa died on 15[th] October, 1986 i.e.Cwithin eight months of the alleged marriage. The plaintiff, apart fromthe oral evidence, relies upon a photograph (Ex.P/28) wherein theplaintiff and Hanumanthappa are seen together. PW-2 to PW-5 havedeposed that the photograph (Ex.P/28) was taken in Malur afterperforming marriage in Sub-Registrar’s office. The learned trial courtDfound that Hanumanthappa was 19 years 9 months old at the time ofmarriage and the plaintiff, as admitted by her in cross-examination, was15 years of age at the time of marriage. It was, thus, held that theplaintiff and the deceased have not attained the qualifying age at thetime of registration in the office of Sub-Registrar and, thus, marriagewas void ab initio. It is also held that there is no evidence ofEperformance of necessary marriage ceremonies in terms of Section 7of the Hindu Marriage Act, 1955[1], therefore, mere registration of anagreement of marriage is not sufficient to prove marriage. The trial courtalso took into consideration the statement of plaintiff admitting that thedeceased was suffering from some diseases earlier to the marriage andFher father performed marriage in a hurry with an intention to get theproperty. Plaintiff deposed that she belongs to Vokkaliga community andmarriages were performed in the house and no marriage in the familywas performed in the Sub-Registrar’s office. The learned trial courtheld that the marriage of the plaintiff with the deceased is said to beGproved but marriage is void ab initio in terms of Section 24 of theSpecial Marriage Act, 1954 as both have not attained the qualifying agefor marriage. In the result, the trial court dismissed the suit and heldthat defendant Nos. 2 to 5 are entitled to 1/3[rd] share of the totalscheduled property.

H1 for short, ‘Act’

8. Both sets of parties went in appeal. The learned First AppellateCourt affirmed the findings of the trial court that marriage of the plaintiffwith deceased Hanumanthappa is established and that Ex.D/3, the dateof birth certificate of the plaintiff is not admissible as it is not an authenticdocument. In the absence of proof of date of birth, the First AppellateCourt held that the trial court committed an error in coming to theconclusion that the plaintiff has not attained the age of marriage. Thelearned First Appellate Court held that Ex.P/1 is not a proof ofsolemnization of marriage under the provisions of the Special MarriageAct, 1954 as it is only a contract of marriage which was registered.No marriage certificate has been issued by the competent authority,therefore, the parties cannot be deemed to have married under theSpecial Marriage Act, 1954. However, the First Appellate Court heldthat since the parties are Hindus and that if the marriage is neither voidor voidable under the Act, therefore, the provisions of age of marriageare only directory in nature and not mandatory. The marriage was heldto be valid, consequently, the suit was decreed.

9. The High Court in second appeal held that there was amarriage between plaintiff and Hanumanthappa and that the certificate(Ex. P/1) is neither marriage certificate nor issued to evidence themarriage in terms of provisions of the Special Marriage Act, 1954 butonly a piece of evidence supporting the version of the plaintiff that hermarriage has taken place with Hanumanthappa. The High Court saidthat in law, a customary Hindu marriage can be proved only onestablishing that the parties to the marriage had gone through thenecessary observances but since the defendants have denied themarriage itself, they cannot be permitted to turn around to contend thatit was not a valid marriage.

10. Learned counsel for the defendants argued that the plaintiffnever asserted that she married Hanumanthappa either under theSpecial Marriage Act, 1954 or a marriage under custom. In fact, theplaintiff has not pleaded that she married Hanumanthappa exceptasserting that defendant No. 1 is her father-in-law. The defendant No.1 Sonnappa is maternal grand-father of the plaintiff, whereasHanumanthappa was son of defendant No. 1, meaning thereby, the claimof the plaintiff is that she married her Uncle. It is not disputed thatHanumanthappa was suffering from various diseases and died withineight months of the alleged marriage. The stand of the defendants is AB

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Athat there was no marriage and that the story of marriage was createdto take the share of the deceased Hanumanthappa in the property.

11. Before we proceed further, some relevant provisions of theHindu Marriage Act, 1955 need to be extracted hereunder:

“5. Conditions for a Hindu marriage. –B

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(ii) at the time of the marriage, neither party,- (a) is incapable of giving a valid consent of it inconsequence of unsoundness of mind; or C

(b) though capable of giving a valid consent has beensuffering from mental disorder of such a kind orto such an extent as to be unfit for marriage andthe procreation of children; or

(c) has been subject to recurrent attacks of insanityor epilepsy; D

(iii) xxxxxx

(iv) the parties are not within the degrees of prohibitedrelationship unless the custom or usage governing eachof them permits of a marriage between the two; E

(v) the parties are not sapindas of each other, unless thecustom or usage governing each of them permits of amarriage between the two; xx xxxx F

7. Ceremonies for a Hindu marriage.- (1) A Hindu marriagemay be solemnized in accordance with the customary rites andceremonies of either party thereto. (2) Where such rites andceremonies include the saptapadi (that is, the taking of sevensteps by the bridegroom and the bride jointly before the sacredfire), the marriage becomes complete and binding when theseventh step is taken.

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11. Void marriages.- Any marriage solemnized after thecommencement of this Act shall be null and void and may, on a H

petition presented by either party thereto, against the other partybe so declared by a decree of nullity if it contravenes any oneof the conditions specified in clauses (i), (iv) and (v), Section 5.”

12. One of the issues framed was whether the plaintiff is wifeof Hanumanthappa. Since the entire claim of the plaintiff is based uponher marriage with Hanumanthappa, the burden of proof as to anyparticular fact lies on the person who wishes the Court to believe in itsexistence is the established principle of law. This Court in VaradaBhavanarayana Rao v. State of A.P.[2], held that in terms of Section102 of the Evidence Act, 1872[3], the burden of proof in a suit orproceeding lies on that person who would fail if no evidence at all weregiven on either side. It was held as under:- “15. That being the position, the question on which of thecontending parties the burden of proof would lie has to be decidedon the relevant provisions of the Evidence Act. Section 101 ofthe Evidence Act provides that whoever desires any court to givejudgment as to any legal right or liability dependent on theexistence of facts which he asserts, must prove that those factsexist. Section 102 provides that the burden of proof in a suit orproceeding lies on that person who would fail if no evidence atall were given on either side. Section 103 provides that the burdenof proof as to any particular fact lies on that person who wishesthe Court to believe in its existence, unless it is provided by anylaw that the burden of proof of that fact shall lie on any particularperson.”

13. We find that the High Court has committed illegality inholding that since the defendants have denied marriage, it cannot beasserted by the defendants that the marriage of the plaintiff withHanumanthappa was not a valid marriage. The plaintiff has led evidenceto the effect that the marriage was solemnized in the office of Sub-Registrar vide Ex.P/1. Ex.P/1 has been rightly found to be not acertificate of registration of marriage under the Special Marriage Act,1954 and that there is no evidence that any ceremony has taken place.In the agreement of marriage (Ex.P/1), it is only stated that both partiesare of same caste and with the permission and consent of both of theirfathers, they have entered into this agreement of marriage. This type 2 AIR 1963 SC 1715

3 for short the “Evidence Act”

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Aof marriage is not recognized in law as Section 7 of the Actcontemplates that the marriage can be solemnized in accordance withcustomary rites and ceremonies of either party thereto and where suchrites and ceremonies include the Saptpadi, the marriage becomescomplete and binding when the seventh step is taken.

B14. The plaintiff has not led any evidence of solemnization ofmarriage as provided under sub-clause (2) of Section 7 of the Act orby leading any evidence of customary rites and ceremonies. The burdento prove marriage was on the Plaintiff alone. The defendants havedenied marriage of the Plaintiff, therefore, the burden to prove marriagewas on the plaintiff alone. Apart from such fact, the marriage cannotCbe said to be taken place in terms of Section 5(v) of the Act which isto the effect that the parties are not sapindas to each other, unlessthe custom or usage governing each of them permits of a marriagebetween the two. Such marriage is a void marriage but, on a petition,preferred by either party thereto.D

15. Hanumanthappa, a party to the marriage died soon after theso-called marriage. Therefore, the question required to be examined iswhether the alleged marriage which is between the persons of less than21 years and 18 years and between the prohibited degree is a validmarriage. The plaintiff will be entitled to the estate of HanumanthappaEonly if she proves her valid marriage. The plaintiff has not pleaded anycustom permitting marriage within the prohibited degree nor there isany proof of solemnization of any marriage by customary ceremoniesand rites, therefore, the plaintiff will not be entitled to succeed only onthe basis of alleged registration of an agreement of marriage. In theabsence of customary ceremonies or the custom permitting marriageFbetween the prohibited degree, the plaintiff has no legal right to claimthe share in the property only on the basis that some of the witnessesproduced by her admitted that she married Hanumanthappa.

16. This Court in a judgment reported as Salekh Chand (Dead)by LRs v. Satya Gupta & Ors.[4] while dealing with the claim ofGadoption under the Hindu Adoption and Maintenance Act, 1966, heldas under:

“21. In Mookka Kone v. Ammakutti Ammal [AIR 1928 Mad299] it was held that where custom is set up to prove that it is H4 (2008) 13 SCC 119

at variance with the ordinary law, it has to be proved that it isnot opposed to public policy and that it is ancient, invariable,continuous, notorious, not expressly forbidden by the legislatureand not opposed to morality or public policy. It is not disputedthat even under the old Hindu Law, adoption during the lifetimeof a male issue was specifically prohibited. In addition, I haveobserved that such an adoption even if made would be contraryto the concept of adoption and the purpose thereof, andunreasonable. Without entering into the arena of controversywhether there was such a custom, it can be said that even ifthere was such a custom, the same was not a valid custom.

22. It is incumbent on party setting up a custom to allege andprove the custom on which he relies. Custom cannot be extendedby analogy. It must be established inductively and not by a priorimethods. Custom cannot be a matter of theory but must alwaysbe a matter of fact and one custom cannot be deduced fromanother. It is a well-established law that custom cannot beenlarged by parity of reasoning.

23. Where the proof of a custom rests upon a limited number ofinstances of a comparatively recent date, the court may hold thecustom proved so as to bind the parties to the suit and thoseclaiming through and under them; but the decision would not inthat case be a satisfactory precedent if in any future suit betweenother parties fuller evidence with regard to the alleged customshould be forthcoming. A judgment relating to the existence of acustom is admissible to corroborate the evidence adduced to provesuch custom in another case. Where, however a custom isrepeatedly brought to the notice of the courts, the courts, mayhold that the custom was introduced into law without thenecessity of proof in each individual case.

24. Custom is a rule which in a particular family or a particularclass or community or in a particular district has from long use,obtained the force of law. Coming to the facts of the case PW1 did not speak anything on the position either of a local customor of a custom or usage by the community; PW 2, Murari Lalclaimed to be witness of the ceremony of adoption, he wasbrother-in-law of Jagannath, son of Pares Ram who is said tohave adopted Chandra Bhan. This witness was 83 years old atthe time of deposition in the court. He did not speak a word eitherwith regard to the local custom or the custom of the community.

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APW 3 as observed by the lower appellate court was only 43 yearsold at the time of his deposition whereas the adoption had takenplace around 60 years back. He has, of course, spoken aboutthe custom but that is not on his personal knowledge and this isonly on the information given by PW 2 Murari Lal. He himselfdid not speak of such a custom. The evidence of the plaintiffBwas thus insufficient to prove the usage or custom prevalent eitherin the township of Hapur and around it or in the community ofVaish.”

17. In the present case, the plaintiff has not proved custom ofmarriage to her mother’s brother and/or judicial precedent recognizingCsuch marriage. In the absence of any precedent or custom of suchmarriage, no judicial notice can be taken of a custom as argued by thelearned counsel for the plaintiff. In the absence of any pleading or proofof custom, the argument that in Vokkaliga community, such marriagecan be performed cannot be accepted as no judicial precedent wasbrought to the notice of the Court that such a custom exists in theDVokkaliga community nor there is any instance quoted in evidence ofexistence of such custom.

18. The burden to prove the marriage was on the plaintiff. Theplaintiff has failed to prove the marriage. The entire case is based uponan agreement of marriage in which there is no assertion regardingsolemnization of the customary ceremonies or the rites or that the partiesEhad performed saptpadi in the manner contemplated under Section 7of the Act, therefore, the plaintiff cannot succeed the estate ofHanumanthappa on the basis of a marriage which she has failed toprove.

19. Consequently, the present appeal is allowed while restoringFthe judgment and decree of the learned Trial Court.

Ankit Gyan

Appeal allowed.

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