THIMMAKKU Vs. BANDLU RANGAPPA

JUDGEMENT

(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.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. We, therefore, reverse the finding of the Court below and hold that the alleged divorce is not proved.