1. This appeal is by defendants 3 and 8 in O.S.No. 16 of 1970 in the Court of the Civil Judge, Coorg, Mercara. Rcspondent-1 is the plaintiff and the remaining respondentsare the rest of the defendants. The suit property is Jamma wet land measuring 3.75 acres in S.No. 56 of Kukloor village, in Virajpet Nad.
2. The facts are that this land originally belonged to one Cariappa. Cariappa had two sons by name Devaiah and Aiyappa. There was partition between Devaiah and Aiyappa and this land fell to the share of Devaiah. Thereafter Devaiah expired in the year 1943 leaving behind him only his daughter the plaintiff. Defendants 3 and 8 are the sons of Aiyappa. Defendants 2 to 7 also belong to Monnanda family i.e., parental family of the plaintiff. Defendant-1 belongs to one Karnanda family. After the death of Deviah, the property devolved on the plaintiff. She enjoyed it as owner. On 20-4-1950 the plaintiff mortgaged this property in favour of defendant-1 by a registered deed Ext. D-4, equal to Exhibit P-1 (certified copy). This wasusufructuary mortgage in favour of defendant-1 stipulating that he should pay himself the mortgage money out of the rent and profits of the land enjoying the same for 12 years. On 28-4-1950 defendant-1 assigned his right to defendant-2 and husband of defendant-7 by executing a registered deed as per Exhibit P-2. The plaintiff mortgaged this property to defendant-1 to secure money for her marriage. She got married. On 15-3-1952 defendants 3 and 8 namely, the appellants, paid the mortgage amount to defendant-2 and husband ofdefendant-7 and secured possession of the property and also the original deeds. An endorsement as per Exhibit P-2(b) was made on Exhibit P-2, the deed of assignment, executed by defendant-1 in favour of defendant-2 and husband of defendant-7. Defendants 3 and 8 continued to be inpossession of this property. On 24-6-1963 the plaintiff issued a legal notice to defendants 1,2,7 and 3 stating that when she went to get the land cultivated she was obstructed without there being any right title and interest in the said persons and called upon them to hand over possession of the land. A reply as per Exhibit D-2 dated 1-7-1963 was sent to her. Thereafter the plaintiff filed this simple suit for declaration of her title to the suit property and possession of the suit property. This suit was contested on various grounds, but mainly on the ground that on the plaintiff getting married, she lost her right to this property as per the customary law of Kodava Community and defendants 3 and 8 being reversioners they had title to the suit property. In other words, defendants 3 and 8 defended their possession by putting forth their own title on the basis of the aforementioned contention.
3. The Trial Court dismissed the suit of the plaintiff. On appeal by the plaintiff in R.A.No. 8 of 1974, the District Judge allowed the appeal and decreed the suit of the plaintiff.
4. The plaintiff placed reliance on her evidence as P.W. 1 and the evidence of one M. Bheemiah as P.W. 2. She produced copy of the original mortgage deed in favour of defendant-1 (Exhibit P-1), copy of the assignment deed Exhibit P-2 dated 28-4-1950 executed by defendant-1 in favour of defendant-2 and husband of defendant-7 and the endorsements Exhibits P-2(a) and P-2(b).
5. The defendants examined as many as 15 witnesses and relied on. Exhibit D-3, certified copy of the usufructuary mortgage dated 2-5-1941; Exhibit D-4, original mortgage deed dated 20-4-1950 equal to Exhibit P-1 ; Exhibit D-5 certified copy of the usufructuary mortgage dated 16-5-1925; Exhibit D-6 certified copy of the usufructuary mortgage dated 9-5-1932 and Exhibit D-7 certified copy of the order passed by the Deputy Commissioner of Coorg District in Revenue Revision Case No. 1 of 1958, dated 28-8-1958. It may be stated here itself that the parties to the suit are not the parties to Exhibit D-7.
6. It is undisputed that the parties belong to Kodava community in Coorg District. They are governed by Mithakshara School of Hindu Law, It is also undisputed that the contention raised by the defendants that when the plaintiff got herself married, she lost her right to the suit property is by way of custom prevailing in Kodava Community and that custom is in variance with the relevant principles in Mithakshara School of Hindu Law.
7. The facts narrated above make it abundantly clear that the defendants particularly defendants 3 and 8 namely, the appellants, have defended their possession of the suit property putting forth their own title on the aforementioned proposition of law. It has been, in this connection, held by this Court in P. A. Machiah -v.- M. B. Ponnavva, AIR 1973 Mysore 1 that the law governing the Hindus in Coorg is Mithakshara subject to any modification based on customary law governing the parties. The case of the defendants, namely, the appellants falls entirely within this province.
8. It cannot at all be disputed that the burden was on the defendants to establish this position of customary law by adducing reliable, cogent, consistent and conclusive evidence. The defendants have examined D. W-1 Somiah and D-W-9 C. A. Erappa regarding the transaction in Exhibit D-3; D. W. 7 Ponnappa about the transaction in Exhibit D-5; D. W. 8 P. S. Ponnappa regarding the transaction in Exhibit D-6 and D. W. 4 Kuttappa the scribe of Exhibit D-4 equal to Exhibit D-1. Defendant-2 has examined himself as D. W. 14 and also examined D. W. 15 M. Nanayya. No other witness has been examined. D. Ws. 2, 3, 5, 6, 10, 11 and 12 have been examined as witnesses speaking generally to this custom prevailing in Kodava Community in Coorg District. D. W. 13 Madappa has been examined to speak to a transaction that had transpired in his family, but he does not refer to either the date of the transaction or the properties involved so as to connect his evidence with Exhibit D-6, though Sri U.L. Narayana Rao, learned Advocate appearing on behalf of the appellants, argued that his evidence has to be considered along with the evidence of D W. 8 who has specifically spoken to the transaction narrated in Exhibit D-6. Exhibit D-7 relates to some dispute regarding mutation which went up in revision before the Deputy Commissioner of Coorg. The Deputy Commissioner has, in Exhibit D-7, observed as follows :
'In this particular case, had it not been for the Hindu Succession Act, the properties would undoubtedly have reverted to the other members of the family after the marriage of the petitioner. But in view of Section14(1) of the Hindu Succession Act of 1956, although the petitioner Machama has ceased to be a member of the Adengada family, she will be entitled to the properties which were in her enjoyment prior to her marriage. The Tahsildar was not therefore justified in deleting the name of Machama from the sixth column of the Jamabandy.'
9. Sri U. L. Narayana Rao referred me to what has been stated in the Mysore State Gazetteer (1965) at page 109 which is to the following effect.
'Under the Coorg Customary Law, a daughter had only the right maintenance from the properties of her father till her marriage, and after her marriage, she had no right either of share or of inheritance in the properties of her father.'
He also referred me to the following books. 'Kodavas' a comprehensive study by Sri B. D. Ganapathy; 'A Tiny Model State of South India' by Sri I. M. Muthanna; by Dr. Suryanath Kamath ; by Nadikeriyanda Chinnappa and ' A Manual of Coorg Civil Law' by Major-General Rob. Cole.
10. Mr. Cole has, in paragraph 200 of his book, stated as follows :
'200(9) The unmarried daughter, and if at the time of marriage the Mukka purje alluded to, Section 40, be not given the right is forfeited, and she has only a right in her husband's house.'
What is stated by the learned Author Cole is in conformity with what has been noted in the Gazetteer already referred to. It is to be stated here itself that in the rest of the books referred to by Sri U. L. Narayana Rao this aspect has not been specifically referred but Sri U. L. Narayana Rao argued that the same can be inferred on referring to certain passages. He drew my attention to pages 37 and 51 of Mr. Ganapathy's book. Mr. Ganapathy has stated at page 31 that aftermarriage a Kodava girl severs almost all connections of the natal family and assumes membership in the family of her husband. At page 51 it is stated as follows :
'Girls leave the family on marriage and acquire the membership of the husband's family and the right for a share in the husband's property.'
I consider it unnecessary to make a reference to the passages adverted to by Sri U. L. Narayana Rao in the other books because they are more or less to the similar effect as found in pages 37 and 51 of Mr. Ganapathy's book. I have no hesitation in holding, after reading these passages, that these passages have not referred to a particular custom and much less in derogation or variance with what is found in Mithakshara School of Hindu Law regarding the rights of the daughters under such facts and circumstances in the properties belonging to their father. Therefore, what remains to be considered with reference to the books relied on by Sri U. L. Narayana Rao is the narration found in the Gazetteer and Mr. Cole's book.
11. The narration found in Mr. Cole's book cannot constitute evidence in the strict sense as the same does not fall within the ambit of Sections 35, 32(4) and 48 of the Indian Evidence Act. Hence, I observe that it has informative value mostly because it has been compiled as long back as in 1871,that too, by a person who was Superintendent of Coorg and therefore can be presumed to have knowledge in regard to this aspect may be even to a considerable extent. What is stated in the Gazetteer has been already excerpted. That will be relevant for consideration, but what has been stated therein must be proved to be genuine. That position in law cannot be disputed. Therefore it is the evidence relied upon by the defendants that will have to be gone into carefully bearing in mind that there appears to be possibility of such a customary law prevailing in Kodava Community in Coorg District.
12. The question whether this would be purely a matter of appreciation of evidence or a question of law need not be, in my opinion, gone into, in detail so as to exercise the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, as it stood prior to the amendment by Act No. 104 of 1976, in view of the decision of the Supreme Court in Baba Narayan-v.- Saboosa wherein it has been laid down as follows :
'Where the existence of a custom may be regarded as a question of the proper interpretation of the specific facts proved it is a question of law which is open in second appeal.'
In view of this proposition of law it would be necessary to go into the evidence relied on by the defendants, as the burden is heavily on the defendants, to find out which are the specific facts proved and whether the proved facts are sufficient to establish the customary law relied upon by the defendants.
13. As the position in law is that the parties are governed by Mithakshara School of Hindu Law and the defendants have set out a variance in derogation of those principles of law by putting forth the custom, the principles laid down by the Supreme Court in Harihar Prasad -v.- Balmiki Prasad, : 2SCR932 would be clearly attracted. Two principles have been propounded; one is in regard to assessment of oral evidence and the other is on the question of burden of proof. In regard to assessment of oral evidence, the Supreme Court has held as follows :
'When oral evidence is sought to he given about what happened some generations ago, it has to be assessed with a great deal of care.'
In regard to burden of proof, the Supreme Court has categorically laid down that the burden is on the party who asserts such custom and if that party fails to discharge that burden, he cannot succeed on the basis that the other party did not succeed in proving that the custom did not exist. In the said case 52 instances were relied upon by the party who set up a custom in the family. For reasons recorded by the Supreme Court, 49 out of 52 instances were held inadmissible in evidence. The Supreme Court proceeded to take into consideration only three instances. While consideringinstance No. 1 in paragraph 16, the Supreme Court has adverted to the concerned document, Exhibit 18 and observed as follows:
'Ext. 18 itself mentions that Sheokumar and Rajeshwari filed an application in the land registration case on the ground that they were adopted sons of Parkalo Kumari and also specifically mentions that they have no interest in title to and concern with the estate left behind by the said Mosamat (Parkalo Kumari) nor can they have any. In the face of these two significant facts we do not think that the mere mention of the custom in Ext. 18 establishes the existence of the custom now pleaded. Ext. 18 does not say what the custom was.
(underlining is mine)
In the case on hand, apart from the evidence of the witnesses who have generally spoken to the custom, specific instances narrated in Exhibits D-3, D-5 and D-6 have been relied upon by the defendants particularly the appellants. It may be remembered that Exhibit D-4 is nothing but the original mortgage deed executed by the plaintiff in favour ofdefendant-1 and the certified copy of it is Exhibit P-1. I have already pointed out that D.Ws. 1 and 9 speak about the transaction in Exhibit D-3; D.W. 7 speaks about the transaction in Exhibit D-5 and D.W. 8 about the transaction in Ex. D-6. It cannot at all be said that as only three instances of transactions have been relied upon by the defendants, the material is insufficient to establish the ingredient essential for proof of custom that too, customary in a particular community, in view of the decision of the Supreme Court in Kaliamma -v.- Janardhanan, : 3SCR503 wherein it has been held as follows in paragraph 10.
'While it is true that this community is a very small community found within a small local area and the cases that are likely to arise in that community, which wilt reach the courts may not be many, we cannot merely on that ground ignore the well established principle that before a custom can be held as having been proved merely on the basis of earlierdecisions, those decisions, should have been based on evidence adduced in respect of the cases.'The very fact that the Supreme Court has in Harihar Prasad's case proceeded to consider only three instances afterrejecting 49 instances also goes in support of this principle in law. Therefore, the number of instances being restricted to three in the case on hand cannot be a relevant aspect for ruling out the case of the defendants-appellants in proof of the custom relied upon by them.
14. At this juncture, it would be, in my opinion, appropriate to advert to the argument of Shri Narayana Rao which he vehemently advanced on the basis of the narrationcontained in Exhibit D-4, equal to Exhibit P-1, itself. It is to be remembered that D-4 has been executed by the plaintiff in favour of defendant-1. Perusal of Exhibit D-4, equal to Exhibit P-1, shows that the transaction is a mortgagetransaction which is self redeeming and the period fixed is twelve years from the said date, namely, 20-4-1950. Sri U.L. Narayana Rao drew my attention to the following narration.
The reasoning of Sri Narayana Rao is that when the plaintiff executed Exhibit D-4 she, was not yet married andtherefore the use of the words in Exhibit D-4 referred to the members of her natal family. He, further argued that the plaintiff herself has stated, as clearly excerpted above, that defendant-1 was to hand over back to a member of her natal family which, according to him, she would not have stated particularly on the eve of her marriage if she had continued to have right, title and interest in the property namely, equity of redemption even after her marriage. Sri Narayana Rao concluded that this narration clearly shows that the plaintiff was herself aware of such a custom prevailing in Kodava Community and therefore boundherself by stating as excerpted above, and accepted the position that the other members of her natal family acquired right of equity of redemption.
15. Sri S.G. Bhagwan, Learned Advocating appearing on behalf of the plaintiff, pointedly brought to my attention what is stated by the plaintiff almost at the end of Exhibit D-4, as follows :
He argued that this narration goes contrary to the contention of Sri Narayana Rao to the effect that the plaintiff herself has accepted her position prevalent by virtue of the custom relied upon by the defendants and therefore it was further stipulated that defendant-1 was to hand over possession of the property, after the expiry of the period of 12 years, to the members of her natal family. He further argued that if that were to be so, she would not have bound herself to the loss sustained by them because of certain dispute if raised by her or by members of her family or somebody else. In case she had accepted the custom depended upon by the defendant-1, she would not have bound herself to make good the damages if sustained by defendant-1 that too after her marriage when she no longer continued to have any right, title or interest in the suit property.
16. The two contentions are worth noting. There can be no doubt about it. It can also be said that both thecontentions appear to have equal force. But the question is whether these narrations in Exhibit D-4, equal to Exhibit P-l, make out that there is such a custom prevailing in Kodava Community of Coorg District. In this connection, it is worthwhile noting that what the actual custom is not narrated in Exhibit D-4, is exactly noted by the Supreme Court in Harihar Prasad's case while dealing Exhibit 18 in that case. To meet this situation, Sri Narayana Rao, relied on the evidence of D.W. 4 Kuttappa the scribe of Exhibit D-4. Kuttappa has, of course, stated that such a custom is prevalent and it applies to only Jamma properties and not to other properties. He has nowhere stated in his evidence that the plaintiff executed Exhibit D-4 accepting this position of law by way of custom. He has not tried to state anything about the afore excerpted narrations. Sri Narayana Rao argued that the narration relied on by Sri S. G. Bhagwan has been written in Exhibit D-4 in the usual course as the scribes of such documents generally do. That is the explanation offered by Sri Narayana Rao representing the appellants. That is not the evidence of D.W. 4. D.W. 4 was the person competent to explain away that narration in that behalf. If the custom was as deposed to by D.W. 4, one has to wonder why it is not narrated in Exhibit D-4 and why D.W. 4 has not stated anything about non-mention of custom when he wrote Exhibit D-4.
17. This takes me to the evidence of D.Ws. 1 and 9 regarding Exhibit D-3 Exhibit D-3 also does not state that such a custom prevails in Kodava Community. The transaction narrated in Exhibit D-3 is described as usufructuary mortgage. Though Ex. D-3 is the certified copy, it is proved by the said witness that the original has been lost ormisplaced. D.W. 1 Somaiah has stated that Poovamma inherited the property concerned in Exhibit D-3 from her father ; she got herself married and went to her husband's house and that Appaiah and Chengappa remained as owners of the property. D.W. 9 has stated that Poovamma executed usufructuary mortgage in favour of D.W. 1 under Ex. D-3 and the properties reverted to the brothers of Ayyanna father of Poovamma and those brothers are Achaiah and Chengappa out of whom he is the son of Achaiah, Perusal of Exhibit D-3 shows that the same has been executed by Poovamma and the property is mortgaged by way ofusufructuary mortgage. Further on it is stated as follows :
It is plain that what has been narrated in Exhibit D-3, as above, has evidently lesser force as compared to the narration in Exhibit D-4. This takes me to Exhibit D-5 and the evidence of D.W. 7 Ponnappa. Ponnappa has stated at Kalappa the younger brother of Nanjappa had separated and he died survived by his only daughter Kunjamma. Kunjamma enjoyed the properties of Kalappa. Kunjamma mortgaged the properties for her marriage expenses as per the certified copy of the mortgage deed at Exhibit D-5 and after her marriage and the expiry of the period of usufructuary mortgage, the properties reverted to him. He has, of course, in general terms, stated about the custom pleaded by the defendants as prevailing in Kodava Community. The relevant narration in Exhibit D-5 is as follows :
Nothing is stated in Exhibit D-5 as to whom the mortgagee should hand over possession of the properties after theexpiry of the period in question. Therefore, the narration in Exhibit D-5 would not be of any assistance to establish a transaction falling within the provisions of Section 13 of the Indian Evidence Act in proof of the custom relied upon by the defendants. What remains would be the oral evidence of D.W. 7. That evidence will have to be analysed, appreciated arid weighed along with the evidence of the remaining witnesses who have generally spoken to the prevalence of such a custom.
18. The transaction in Exhibit D-6 is spoken to by D.W. 8 Ponnappa. His age was 49 years at the time of hisdeposition. He has sworn that his father had taken mortgage of some properties from one Bollavva daughter of Pullangad Ganapathy. Ganapathy had no male issues. After the mortgage period expired, his father left the properties to the brothers of Ganapathy because Bollavva got married and ost her right to the properties. He has not stated why Bollavva lost her right. In other words, he knows nothing about such custom and further he has not stated that, he is likely to have known such custom so as to make his evidence relevant under Section 48 of the Indian Evidence Act. The relevant narration in Exhibit D-6 is as follows :
Nowhere has it been stated as to whom the mortgagee was to redeliver possession of the properties after the expiry of the period concerned. The reasoning that has been already advanced in regard to Exhibit D-5 applies with all force to this transaction also.
19. In view of the foregoing, the transactions involved under Exhibits D-3, D-5 and D-6 do not at all provide the, necessary material that can be of any assistance to arrive at a conclusion that such a custom depended upon by the, defendants did prevail and has been satisfactorily established. In that view of the matter, no question of going into the, remaining essentials of the custom so as to bind the parties legally, arises. The evidence of D.Ws. 7 and 8 would not also satisfy the ingredients of Section 48 of the Indian Evidence Act. As already pointed out D.W. 8 was only 49 years and he has spoken to a transaction that had been entered into in May 1932 i.e., about 29 years earlier to his birth.
20. Then it is to be seen whether the oral evidence of D.Ws. 2, 3, 5, 6, 7, 10, 11, 12 and 13 can be, in law, regarded as sufficient to establish all the essentials of the custom pleaded by the defendants. It is to be remembered that the Supreme Court has ruled that such oral evidence has to be assessed with a great deal of care. The lower appellate Court has assessed the evidence of these witnesses by adverting to all they had narrated. It has not accepted the oral evidence of these witnesses. It would be too much to contend at this stage that their evidence carries sufficient weight in proof of the custom relied upon by the defendants.
21. The evidence of D.W. 14 stands on a footing slightly different from the evidence of the aforementioned witnesses as, it is to him and husband of defendant-7 that defendant-1 had assigned his rights as per Exhibit P-2. All that he has stated is that the plaintiff got married within one month after Exhibit D-4, equal to Exhibit P-1, and his deceased cousin brother cleared off the debt as per the endorsement, Exhibit P- 2(a) and later Uthappa the brother's son of Devaiah discharged the debt and he endorsed it as per Exhibit P-2(b) and he and Appaiah the cousin brother had to discharge the mortgage debt as they were the owners of the properties. He has nextly stated as follows :
'In case if a Kodava male dies without male issue, leaving daughters, his properties will go to his daughter in the first instance. The daughters will be in possession till their marriage. After their marriage, the property will revert to the nearest heirs of their deceased father.'
He nextly narrated the instance of one Balladichanda Mandanna and how after the marriage of the daughters of the said person the properties reverted to B. Nanaiah who is the plaintiff's husband. He has not furnished details of the said transaction of Balladichanda Mandanna and no document has been produced to buttress his evidence.
22. Even the cross-examination of the plaintiff does not make out any reference to this transaction. If such atransaction had taken place there would have been entries available in the revenue records and such evidence would be admissible in evidence under Section 13 of the Indian Evidence Act. Therefore the oral evidence of D.W. 14 can only be on par with the oral evidence of the other witnesses. Hence the conclusion will have to be the same even after considering his evidence.
23. In view of the foregoing, this appeal is devoid of merits and is dismissed.