1. This appeal by the unsuccessful plaintiffs is directed against the judgment and decree dated 30-3-1972 made in 0 S. No. 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 defendants 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 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. Thippa reddy 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 said Hanumanthappa and in that right entitled to a share in the joint family estate, and (iii) what are the portable properties and to what share, if any, are the plaintiffs or any of them entitled.
3. On the first question whether there 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 Rathnamma the second defendant, as his second wife; that as an inequitable sequel there were misunderstandings and incompatibilities leading to the first plaintiff living apart and instituting a suit for maintenance in 0. S. No. 22 of 1953 on the file of the Munsiff, Devangere; that this claim was settled in terms of the registered maintenance deed Exhibit D-1 dated 26-3-1953 and that immediately after Ex. D-1 was executed, the first plaintiff, in the presence of D. Ws. 7, 8, 9 and 10, threw away the 'trail' 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 'trail' 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 Reddish 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 I 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 in the evidence on the point, are sketchy. Indeed, the passage in 'Caste and Tribes in Mysore' by H. V. Nanjundiah, relied upon by Sri K. Subbia Rao, learned counsel for the respondents-defendants, even if considered to govern and be applicable to the parties, itself shows that it is the caste that is the arbiter. The evidence of D. Ws. 7, 8, 9 and 10, even if wholly accept sums up to nothing more than that the first plaintiff threw away her 'trail' 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 Shri 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.
4. The second question is whether plaintiffs 2 to 7 are the children of the first plaintiff born to or begotten by the said Hanumanthappa. Plaintiffs, in this case, start with a very great advantage by way of a strong presumption favoring legitimacy and against bastardy erected by S. 112 of the Evidence Act. The basis of the rule is the notion that it is undesirable to enquire into the paternity of a child whose mother and her 'husband had between them a subsisting marital status and had had access to each other. Section 112 of the Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any shall be conclusive proof that he is he legitimate son of that man. Where one fact is declared by law to be conclusive proof of another, Court shall on proof of that fact, regard the other as proved and shall not allow evidence to be given for the purpose of disproving it. However, S. 112 makes this presumption rebuttable by showing that the parties to the marriage had no access to each other at any time when the child or children in question could have been begotten.
5. Defendants have sought to rely upon Ex. D-9, certified copy of the extract of the School Admission Register, pertaining to the second plaintiff; Ex. D-4 and D-6 being extracts of birth registers and Ex. D-5, the extract of School Admission Register pertaining to the fifth plaintiff; and Ex. D-7, another extract of School Admission Register pertaining to the sixth plaintiff, which contain recitals that the father of the plaintiffs concerned in the said documents one B. Thippa Reddy. The Court-below has relied upon these documents in support of its findings for the defendants. But, it appears to us that in the absence of the examination of and testimony by some witness competent to speak to matters either as to the knowledge of the relationship or as to the source of the information or statements on which the said recitals came to be incorporated in the said documents, the recitals in themselves cannot be treated as substantive evidence and as admissible on the question concerning paternity purportedly indicated in the said documents as such entries are matters extraneous to what is strictly enjoined upon the officer to record. The question whether the defendants have discharged their burden of showing that the first plaintiff and Hanumanthappa had had no access to each other after 26-3-1953 has therefore, to be decided with reference to the other evidence on record.
6-11. (After discussion of oral and documentary evidence his Lordship proceeded.)
12. The circumstances borne out by Ex. D-1 that the first plaintiff and Hanumantha. Reddy lived apart. Taken together with the cumulative effect of all the other oral and documentary, evidence on record bearing on the question supports the defendants case that Hanumantha Reddy had had no access to the first plaintiff after execution of Ex. D-1 If the evidence of D Ws. 1, 2, 4, 5, 6 and 10 is accepted and indeed there is hardly any material to reject the same, - the inference would be that the first plaintiff lived in the company of the said B. T. Reddy at Chitradurga a circumstance irreconcilable with and destructive of her case that Hanumantha Reddy used to visit her at Guddarangavanahalli. After Ex. D-1, Hanumantha Reddy lived at Jagalur stated to be about 20 miles away from Guddarangavahalli. The presumption under S. 112 of the Evidence Act would stand rebutted if it is shown that Hanumantha Reddy had severed all physical relations with the first plaintiff. In Chilukurf Venkateswaralu v. Chilukuri Venkatanarayana, : 1SCR424 , B.K. Mukherjea, J. (as he then was) stated the scope of the presumption under S. 112 and the nature of evidence a rebuttal of the presumption would require in the following terms:
'(4) It may be stated at the outset that the presumption, which S. 112 of the Indian Evidence Act contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access again connote, as has been held by the Privy Council: vide - Karapaya v. Mayandi , existence and non-existence of opportunities for marital intercourse. It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff -appellant, that non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favored by law it is necessary that proof of non-access must be clear and satisfactory. Mr. Somayya hag also not contended seriously before us that the principle of English Common Law: Vide - Russel v. Russel, 1924 AC 687 (B), according to which neither a husband nor a wife is permitted to give evidence of non-access, after marriage to bastardies a child born in lawful wedlock, applies to legitimacy proceeding in India. No such rule is to be found anywhere in the Indian Evidence Act and it may be noted that the old Common Law doctrine has itself been abrogated in England by the provision of S. 7 of the Matrimonial Causes Act, 1950: Vide 'In re Jenison' (1952) 1 All ER 1228 (C).'
After bestowing our anxious and careful attention to the matter, it appears to us that the conclusion that after the first Plaintiff lived away from Hanumanthappa there was no access to each other and that plaintiffs 2 to 7 are not children of or begotten by Hanumanthappa become compelling and inescapable in view of the direct and circumstantial evidence obtaining in the case.
13. If, as we are inclined to hold, Exhibit D-1 records a clear agreement on the part of Hanumanthappa and the first plaintiff to live apart, the mere fact that the marital status subsisted will not let the presumption under S. 112 remain undiluted and in all its pristine force and vigor. In Aylesford Peerage case (1886) 11 AC 1, Lord Blackburn stated:
' ... ... ... It appears perfectly clear, upon the evidence, which has been produced, that after Lord Aylesford's return from India, his wife was separated from him, and was living with Lord Bland ford as if she were a Lord Bland ford. Wife at that time living with him, I mean to say, in a state of cohabitation and that Lord Aylesford not only executed a deed of separation from his wife but endeavored to obtain a divorce. In that endeavor he failed. The marriage tie, therefore, remained undissolved, and he was still married. But after that attempt to obtain a divorce had failed, whilst Lady Aylesford was living with Lord Blandford (and it is not disputed at all that adultery was committed), I cannot think that any presumption arises that Lord Aylesford had cohabitation with her. It seems to me that to say that such a presumption arises from the mere continuance of the non-dissolution, to call it so, of the matrimonial tie under such circumstances would be putting a presumption of law very contrary to that of common sense; and I do not think that any authority goes so far as to say that there should be such a presumption.'
These observations appear apposite in the, context of the facts and circumstances, which must be regarded as proved in the present case.
14. This takes us to the third point, which concerns the extent of the partible properties and shares. In view of our findings on point No. (ii) the suit of plaintiffs 2 to 7 requires to be dismissed and accordingly, we affirm the decree of dismissal made by the Court below so far as plaintiffs 2 to 7 are concerned. However, in view of our findings on point No. (i), the suit of the first plaintiff must be held to be maintainable in so far as her entitlement to a share as the interstate heir of Hanumanthappa under the provisions of the Hindu Succession Act, 1956 concerned. The share to which she is entitled is in her capacity of an interstate heir of the estate of the deceased Hanumanthappa, which consists of his interest as coparcener in the coparcener properties of his branch of the family. In other words, the first plaintiff as one of the co-widows of Hanumanthappa is entitled to a share in the deceased Hanumanthappa's share in the joint family properties of the joint family of himself and defendants 2 to 7, which gets separated by the operation of the proviso to S. 6 of the Hindu Succession Act, 1956. It is not necessary for us to decide what her share is, in view of the circumstance that the learned counsel on both sides stated that what the first plaintiff would be entitled as such heir was 1/12th of the share and interest of Hanumanthappa which gets separated on his death or 1/36th share in the properties of the joint family of the deceased Hanumanthappa's branch.
15. So far as the question of the extent of the portable properties is concerned there are no clear-cut findings recorded by the Courts below, except in regard to Items 1 to 5 of plaint 'A' schedule, which concerns defendant 8. The learned counsel for the appellants, however, gave up all contentions against defendant No. 9 and accordingly we affirm the finding of the Court below on issue No. 5 that Items 1 to 5 of the plaint 'A' schedule are not properties of the family of Hanumanthappa liable to partition. Therefore, even the suit of the first plaintiff in respect of these items requires to be dismissed. However, in regard to the question as to the extent of other immovable and move-able properties liable to partition are concerned, the matter will have to go back to the trial Court for a proper ascertainment.
17. Accordingly, this appeal is allowed in part and while the decree of dismissal of the suit of plaintiffs 2 to 7 is affirmed, we, however, set aside the decree of dismissal of the suit so far as the first plaintiff is concerned and declare that the first plaintiff is entitled to 1/36th share in all the movable and immovable properties of the family of Hanumanthappa and remit the matter back to the Court below to ascertain what the portable moveable and immovable properties of the joint family of the branch of Hanumanthappa are - except Items I to 5 of the plaint 'A' schedule in respect of which even the first plaintiff's suit is dismissed - and to dispose of the suit on the basis and in the light of the said findings. The first plaintiff and the defendants shall have an opportunity of adducing further evidence, if any, on the said question in the trial Court.
18. The parties will bear their own costs in this appeal.
19. Appeal partly allowed.