Bodanapu Khasim vs Bodanapu Khaderaiah and Others

Krishna Saran Shrivastav, J.—This is unsuccessful plaintiff''s first appeal in forma pauperis against the judgment and decree of dismissal of his suit for declaration of his 1/4th share, partition and separate possession of the plaint ''A'' and ''B'' schedule properties.

The facts giving rise to this appeal, in brief, are that the plaintiff-appellant is the son of the 1st defendant through his first wife Siddamma. The remaining defendants are the sons of 1st defendant through the second wife Peeramma. The appellant-plaintiff; on the allegation that they belong to Dudekula community who are regarded as Hindus and according to long established custom they are following Hindu customs, practices and conventions, they observe Hindu festivals and rituals; they wear jewels and dress in Hindu fashion; they wear caste marks as Hindus; they form a joint Hindu family, which family owns plaint ''A'' and ''B'' schedule properties; instituted the suit demanding his 1/4th separate share in the plaint ''A'' and ''B'' schedule properties. But the defendant No. 1 refused to do so and, therefore, he is entitled for a declaration that he has got 1 /4th share in the plaint ''A'' and ''B'' schedule properties and is also entitied for partition and separate possession of the same.

The defendants through their written statement denied the allegations of the plaintiff-appellant that they are Hindus or they observe Hindu customs and conventions as alleged. They have pleaded that they are Muslims and they observe all the customs and other religious functions of Muslims. They are governed by muslim law. They do not form a joint Hindu family. The plaint ''A'' and ''B'' schedule properties are not the properties of the joint Hindu family. They have pleaded that under the Muslim law a son has no right to claim partition on the ground of alleged joint Hindu family property. They have denied that movable properties as mentioned in plaint ''B'' schedule properties are in existence. The 1st defendant has a share in item Nos. 4,7,8,23,25 and 26 of the plaint ''A'' schedule properties and he is the absolute owner of item Nos. 15 to 22 and 31 to 33. The suit is, therefore, not maintainable and should be dismissed with costs.

It is a matter of record that the appellant-plaintiff examined three witnesses on his behalf. He himself wasP.W.1. He produced and proved school transfer certificate Ex.A-1 and another certificate Ex.A-2 in support of his case. The defendants examined eight witnesses. The 1st defendant is D.W3. They filed 27 documents in support of their case and proved them.

The learned lower Court, on assessment of the evidence on record, reached to the conclusion that the appellant-plaintiff is the son of the 1st defendant. It reached to the conclusion that the parties are governed by the Muslim law and not Hindu law. The plaintiff-appellant has failed to prove the existence of plaint ''B'' schedule movable properties. It has further found that had the parties been governed by the Hindu law, the appellant-plaintiff would have been entitled to 1/4th share in item Nos. 11 to 13 to the extent of Ac. 1-74 cents only and in item Nos. 15 and 19 because it has not been established that the remaining items of the plaint ''A'' schedule properties belong to the joint family. On the ground that the appellant-plaintiff has failed to establish that they are governed by the Hindu law, the learned lower Court dismissed the suit of the plaintiff which has been filed in forma pauperis.

Being aggrieved by the judgment and decree, the plaintiff has preferred this appeal.

At the outset it is to be remarked that the learned Counsel of the respondents did not challenge the finding recorded by the learned lower Court that the plaintiff is the son of the 1st defendant and rightly so because there is evidence on record that the appellant-plaintiff is the son of the 1st defendant. It is apposite to mention that the mother of the appellant-plaintiff, namely B. Siddamma had filed a suit O.S.No. 12 of 1979 dated 6-2-1982 for maintenance alleging that the 1st defendant is her husband and the 2nd defendant, that is to say, the appellant-plaintiff is the son out of their wedlock. The trial Court decreed the suit as prayed for and held that the 2nd defendant, that is to say, the appellant-plaintiff herein is the legtimate son of the defendant No. 1 and the plaintiff -B.Siddamma. The 1st defendant went in appeal No. 911 of 1982 which wasdismissedon2-9-1994 and reported in Bodanapu Khadaraiah Vs. Bodanapu Siddamma and Another, . In this appeal it has been held that the appellant-plaintiff herein is the legitimate son of the 1st defendant and B. Siddamma, which finding is binding on the parties to the present suit.

Relying on the case of Rosanna v. Subbanna ILR (1970) A.P. 1010 it has been contended on behalf of the appellant-plaintiff that Dudekulas of Cuddapah district have been found to have adopted the Hindu law as their customary law for the purposes of succession and inheritance also and, therefore, the lower Court was erred in reaching to the conclusion that Dudekulas of Cuddapah district are not governed by the Hindu law of succession and inheritance and the appellant-plaintiff as also the defendants are Muslims and they are governed by the Muslim law in the matter of succession and inheritance also.

In Rosanna v. Subbanna ILR (1970) A.P. 1010 it is held as follows:

"....In deciding the question as to whether a distinct community called Dudekulas consist of Mohammedans or Hindus, there were certain inherent difficulties. The community is made up of individuals and many individuals within the community together form a family. There were several such families within the community which were bound by ties of marriage and social inter course. Even if at any time all the members of a particular community bearing a common name like Dudekulas observed the same religion at one opoint of time, it need not necessarily follow that, at any other subsequent point of time, all members of that community must belong to that religion or to the same religion whether it be that religion or any other religion. For, it was open to any individual who belonged to one religion to embrance a new religion of his choice. It was open to such persons who embraced a new religion, that is, by conversion to adopt the law relating to that religion".

"It was open to a Dedukula to adopt any other religion for example, Christianity and then choose to be covered by law relating to Christians".

In the case of Rosanna v. Subbanna (1 supra) the Division Bench of this Court observed that the finding recorded by the lower Court regarding issue Nos. 1 and 2, that is, whether the plaintiff and 1st defendant are Mohammedans or Hindus, and, if they are Mohammedans, whether Hindu law of succession and inheritance applied by custom or usage, whether such a custom is not opposed to statute and hence invalid, are based on factual and large volume of evidence. But, even then, the finding has to be restricted to the evidence in that case and cannot be held to be a binding decision regarding the community of Dudekula so as not to give room for any other finding regarding the custom and right by birth in any other case based on evidence in such case. While agreeing with the findings recorded by lower Court, their Lordships made it clear that those findings are restricted to the evidence in that case and cannot be treated as a binding precedent regarding Dudekulas in all cases.

In Rosanna v. Subbanna (1 supra) the plaintiff had categorically pleaded that the parties belong to a community called Dudekulas in Cuddapah district who were originally Hindus but some generations ago began to adopt certain usages of Muslims so far as marriage and some social customs in general and they have been living as joint families following the incidents of Hindu families and customs. The inheritance is also according to Hindu law even if they are to be treated as Muslims, they have by long association and living in the midst of Hindus, have adopted the Hindu joint family system with the incidents of partition and right-by birth and also the Hindu law of inheritance. The Hindu law of joint family and inheritance is, therefore, applicable to the parties who belong to the Dudekula community of this district by virtue of long and immemorial usage and custom.

It is pertinent to note that the appellant-plaintiff has not pleaded that the Dudekula community of Cuddapah district have adopted Hindu law of succession and inheritance from times immemorial. He has not specifically pleaded that the parties to the suit had adopted the joint Hindu family system with the incidents of partition and rights by birth and also the Hindu law of inheritance or that they have been living as joint families following the incidents of Hindu families and customs. He has only pleaded that they follow Hindu customs, practices and conventions, observe Hindu festivals and rituals, wear jewels and dress in Hindu fashion, etc.

P.W.I has stated on oath that they observe Hindu customs at the time of marriages and celebrate Hindu festivals. Ladies of the community use vermillion on their forehead and wear ''Moltadu''. His evidence is corroborated by the evidence of P.Ws. 2 and 3 who have also stated that Dudekulas are observing Hindu festivals and customs at the time of marriages and they are not Muslims. P.W.3 has admitted in cross-examination that marriages in Dudekula community are performed by Khazi. It is noteworthy that P.W.3 does not belong to the community of Dudekula. The age of P.W.2 is only 30 years. It is pertinent to note that in the whole of the deposition none of the three witnesses examined by the appellant-plaintiff have stated a word about the law of inheritance. They have not stated that Dudekulas form a joint family and that they have adopted the Hindu law of succession and inheritance as their customary law.

As against that, Khazi D.W.2 has testified that Dudekulas are Muslims and he has performed the marriages of Dudekula according to the Muslim law and custom. He has also performed the marriage of the appellant-plaintiff according to the Muslim customs. D.Ws. 4 to 6 have testified that Dudekulas observe muslim customs. They observe Bakrid, Ramzan and Moharram. D.W.2 has testified that Dudekulas believe in only one God (Allah) and perform namaz in mosque. D.W.I is the clerk in S.C.U.D. Sabha High School at Pullampet who has produced and proved the admission application and record sheets issued by the elementary school Head Master, which are at Exs.B-1 to B-3, in which the appellant-plaintiff has been described as Dudekula Muslim.

The learned lower court has discussed the evidence of the parties at length in paras 7 to 10 and has concluded in para 11 of its judgment that the parties are Muslims and they are governed by the principles of Mohammedan Law only. It would not be out of place to mention that in the case of Bodanapu Khadaraiah Vs. Bodanapu Siddamma and Another, the learned Single Judge has observed in para 10 of the judgment that the learned Sub-Judge has given adequate reasons to come to the conclusion that the parties to the suit are Muslims and are governed by Muslim Law and this Court finds no other reasons to differ from the finding of the learned Sub-Judge. Therefore the finding on issue No. 1 that the parties are governed by the Muslim Law and not by Hindu Law deserves to be affirmed.

In Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, it is held that:

"When the appellate Court considers and issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial Court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate Court should permit the findings of fact rendered by the trial Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies".

The findings recorded by the lower Court and discussed above are found on firm foundation and did not merit any interference. The learned Counsel of the appellant-plaintiff was unable to point out any infirmity or illegality either in the approach or in the eventful conclusion reached by the Court below. As noted above, there is no iota of evidence on record that the appellant-plaintiff and the defendants had ever adopted the Hindu Law of succession and inheritance as their customary law. For the foregoing reasons, the case of Rosanna v. Subbanna (1 supra) is of no help to the appellant-plaintiff for the simple reason that it has been observed by their Lordships in that case that the findings recorded by the lower Court and confirmed by them are restricted to the evidence in that case only and cannot be treated as a binding precedent regarding Dudekulas in all cases.

Agreeing with the trial Court, I reach to the conclusion that the appellant-plaintiff has failed to establish that the parties to the suit have adopted the Hindu Law of succession and inheritance as their customary law and, therefore, they are governed by it. I also hold that the finding of the learned lower Court in respect of issue No. 2 is correct that the parties are Muslims and they are governed by the Muslim Law.

It is next contended on behalf of the appellant-plaintiff that the learned lower Court having held in para 12 of its judgment that had the parties to the suit governed by the Hindu Law, the properties mentioned in first schedule to the plaint are available for partition.

The 1st defendant has proved the gift deed Ex.B-24 dated 15-11-1971 as also gift Seed Ex.B-25 dated 15-11-1971 executed by the father of the 1st defendant D.W.3 in favour of his second wife B. Peeramma. It is thus crystal clear that the properties covered by the gift deed Exs.B-24 and 25 belonged to the father of the 1st defendant who lived with him till his death. There is no evidence on record that the 1stdefendant has any other source of income except the agricultural income derived from the lands belonged to his father. It is no longer in dispute before me that except item No. 5 of the plaint ''A'' schedule property which belonged to the mother of the 1st defendant and gifted to his brother vide gifr deed Ex.B-23 dated 15-11-1971, all other properties as mentioned in plaint ''A'' schedule were acquired out of the usufruct of the lands belonging to the father of the 1st defendant because it can be safely inferred that there was adequate nucleus available for the subsequent acquisitions. If the family of the plaintiff and the defendants is governed by the Hindu Law, the appellant-plaintiff would then have a right to claim partition in the plaint ''A'' schedule properties because in that event all the properties except the property covered by Exs.B-23 B-24 and 25 belonged to the joint Hindu family consisting of the plaintiff and the defendants. It is noteworthy that there is no evidence on record that the property covered by Exs.B-24 and 25 was the ancestral property and, therefore, it can be inferred that the father of defendant No. 1 was the exclusive owner of that property and was competent to gift them to the wife of 1st defendant vide Exs.B-24 and 25 on 15-11-1971. The learned lower Court by oversight of this material fact has erred in holding that the appellant-plaintiff, in that event, was entitled to only 1 /4th share in Ac. 1.74 cents of item Nos. 11 to 13 and 21 to 25 only.

As it has been found that the appellant-plaintiff and the defendants respondents are Muslims and they are governed by the Muslim Law, I reach to the conclusion that the appellant-plaintiff is not entitled for a declaration that he has got 1/4th share in the properties held in the name of his father, that is, the 1st defendant and, therefore, the question of partition and separate possession does not arise.

In result, the appeal fails and is hereby dismissed. Since the appellant-plaintiff has been permitted to file this appeal in forma pauperis, he has not paid the Court fee of Rs. 2,466/- on the memorandum of appeal. The appellant is liable to pay the amount of Rs. 2,466/- being the Court fee to the State Government. In the circumstances of the case, I order the parties to bear their own costs.