MALAKAYYA Vs. AVAIT BHOMMAYYA

JUDGEMENT

(1.) The defendants in O.S. No.77 of 1967 on the file of the court of the Subordinate Judge , Nizamabad are the appellants in this appeal. The respondents, two in number filed the suit out of the which the appeal arises for declaration of their title to the suit property and for an injunction. The 1st respondent claimed that he was the adopted son and the 2nd respondent claimed that she was the widow of late Abbu, Abbu died on 19-11-1962 possessed of the suit property. According to the allegations in the plaint the 2nd respondent claimed that she was the widow of late abbu. Abbu died on 19-11-1962 possessed of the suit property. According to the allegations in the palint the 2nd plaintiff was the wife of Abbu and the 1st plaintiff had been adopted about six months prior to the date of the adoption deed which was executed by Abbu and the plaintiffs. therefore were forced to institute the suit. The defendants claimed to be the sons of Abbus fathers brother. They denied that the 2nd plaintiff was the wife of Abbu though they stated that she used to visit the deceased now and then. They also denied the adoption of the 1st plaintiff by Abbu. The parties went to trial on two issues, whether the 1st plaintiff was the adopted son of late Abbu and whether the 2nd plaintiff was the legally wedded wife of late Abbu. On the second question, the plaint did not mention the form of marriage which the 2nd plaintiff and Abbu had gone through. It was merely stated in the plaint that the 2nd plaintiff was legally wedded wife of Abbu., When the defendants denied that the 2nd plaintiff was the legally weeded wife of Abbu it became necessary for her to prove that she was legally married to Abbu. She adduced evidence and according to her case as spoken to by herself and her witnesses at the trial she was originally married to one Papanna and had three children by him. After the death of Papanna she was given in marriage to Abbu. The marriage was performed, according to the caste custo, in the Udiki form. According to her and her witness the Udiki form of marriage consisted to presented of new clothers to the bride, feedings of the guests and taking of the bride by the bridegroom. The defendants adduced evidence denying that there was any such customary marriage know as Udiki from of marriage. They also denied that the 2nd plaintiff was married to the late Abbu. They further adduced evidence to established that after the death of her first husband the 2nd plaintiff was married to one Poshetti who was alive the therefore the 2nd plaintiff could not legally marry Abbu. The defendants also adduced evidence to the effect that the 2nd plaintiff was kept as the mistress of Narayanareddy, the Police patel of the village.

(2.) The learned Subordinate Judge while holding that the deed of adoption was executed by the late Abbu, nevertheless found that it was not established that Abbu had adopted the 1st plaintiff. This finding is most unsatisfactory but the 1st plaintiff has not preferred any appeal though the suit filed by him was dismissed. The learned Subordinate Judge, however found that the of marriage of the 2nd plaintiff with Abbu was established. He therefore decreed to suit in her favour. In this appeal Miss Lakshmidevi, learned counsel for the appellants argued firstly that the essential requisites of a custom had not been established and secondly that the marriage of the 2nd plaintiff with Abbu had not been proved by satisfactory evidence. She urged that the learned Subordinate Judge did not discuss the relevant evidence and that the judgment was most unsatisfactory. I agree with Mis Laxmidevi that the judgment of the learned Subordinate Judge has not discussed the evidence at all. There a hardly any reference to the large value of evidence adduced by the defendants. I have therefore gone through the entire evidence with the assistance of Miss Lakshmidevi. learned counsel for the appellants and Sri Pratareddy, learned counsel for the respondent.

(3.) The first question for consideration is whether the 2nd plaintiff has succeeded is establishing the existence of the Udiki from of marriage. The parties are Munnoor Kapus. Nawab Sirajul Hussian in his Castes and Tribes of H.E. H, The Nizams Dominous; refers to the customs widow marriage amongst Munnoor Kapus and states; "A widow may marry again but not her late husbands brother The ritual in use at the marriage of a widow is simple and consists in presenting the widow with a new saree, glass bengles and toe-rings and tying the "Thali" round her neck.: He also states later Divorced women are money is the same as that of a widows marriage. The Nawab does not mention to name of the from of marriage of a widow or a divorcs but the witnesses in the present case call it the Udiki from of marriage. I may here that I have myself come across the expression Udiki form of marriage in several cases coming form the western districts of the Telangana region and the Raylaseema district, where parties belonging to castes other than Brahmi,, Vysya and Kshatriya claimed to have been married in the Udiki form whenever the birdsd happened to be a siwdow or a divorcee Sometimes it was also described as the Cheerakattu marriage. In the present case, P.W.1 the brother of the 2nd plaintiff stated that he performed the with Abbu. He denied the suggestion that there was not practice of Udiki marriage. He stated that the 2nd plaintiff was presented with new clothes on the occasion of the Udiki marriage and next day show was taken away by her husband to his house. P.W.2 the Asaldar police patel of Kurnappali village state that Udiki marriage were premissible in the Munnoor Kapu case. P .W. 3 stated that Abbu married Butchamma according to the Udiki custom. He described the custom as follows;-