M. Chandralekha vs Subramani and Others

Plaintiff in O.S. No. 515 of 1988 on the file of District Munsif, Sangagiri, who lost in both the Courts below is the appellant herein.

The case of the plaintiff is as follows:

The first defendant Perianna Gounder (who died pending suit) has three sons - Late Natesa Muthu alias Perianna Gounder, Subramani and

Kandasamy. The third defendant is the wife of Natesa Muthu, while the 4th defendant is their daughter. Plaintiff is the wife of Kandasamy.

According to the plaintiff, there was a partition in the family in the year 1968 between the father and sons. In that, Perianna Gounder was allotted

''A'' schedule, while his three sons were allotted ''B'' schedule property. Subramani and Kandasamy in the year 1980 purchased ''C'' schedule

property. Thereafter, in the year 1983, Perianna Gounder settled the ''A'' schedule property in favour of Subramani and Kandasamy. ''D'' schedule

property, which is also an agricultural land was purchased again by these two brothers viz., Subramani and Kandasamy.

The simple and straight case of the plaintiff is that after the demise of her husband in the year 1984, she is entitled for the properties of Kandasamy

(her husband). Or in other words, she is entitled for half share in ''A, C and D'' schedule properties and 1/3rd share in ''B'' schedule properties.

With the above pleadings, the plaintiff filed the suit in O.S. No. 515 of 1988 on the file of District Munsif Court, Sangagiri for partition and

possession and mesne profits as detailed in the plaint.

The second defendant filed written statement resisting the suit and the other defendants adopted the same. With regard to ''B'' schedule property

it is contended that there was subsequent oral partition amongst defendants 2 and 3 and Kandasamy in pursuance of Panchayat decision and the

same was subsequently written up as partition list and under those circumstances, there is no question of enjoyment of ''B'' schedule property either

jointly or in common existing. The purchase of ''C'' schedule property on 5.5.1980 by Subramani and Kandasamy was admitted as well as the

settlement by first defendant on 7.5.1983 in favour of them. However with regard to ''D'' schedule property, the stand taken is that there is no such

property at all. The defendants would claim that plaintiff would not be entitled as Kandasamy had borrowed Rs. 50,000 from second defendant

and another Rs. 90,000 from third parties and in April, 1986 in the presence of other family members and defendants 1 to 3 and relations, he

(Kandasamy) wanted second defendant to discharge all debts and in return for all of his properties for which he will execute a pucca sale deed and

under those circumstances, late Kandasamy deemed to have given up his right in all these properties. In paragraph 6 of the written statement it is

contended that there was dissolution of marriage between plaintiff and late Kandasamy by a deed and that being so, plaintiff cannot be allowed to

take advantage of her own fraudulent act upon late Kandasamy. It is also pleaded that plaintiff has no right to claim partition nor can she ask the

Court to overlook a substantial document of marriage dissolution deed.

The learned District Munsif, after considering the oral and documentary evidence came to the conclusion that plaintiff would be entitled for half

share in item ''A, C and D'' schedule properties and 1/3rd share in item ''B'' schedule property, but however dismissed the suit on the ground that

in the community to which the parties belong, there is a customary way of dissolution and that the marriage between the plaintiff and Kandasamy

was dissolved by a deed of divorce viz. Ex.B-1 dated 25.10.1998, Being aggrieved by the said decree and judgment, the plaintiff filed A.S. No.

78 of 1989 on the file of Sub Court, Sangagiri. The learned Subordinate Judge also concurred with the findings of the trial Court and dismissed the

appeal.

At the time of admission this Court framed the following substantial question of law: ""Whether Ex.B-1 dated 25.10.1984 can be construed as

bringing about a divorce as contemplated under the provisions of the Hindu Marriage Act and would operate to extinguish the rights of the

appellant in her husband''s properties?

The only point that survives for consideration is whether the document viz., Ex.B-1 dated 25.10.1984 would dissolve the marriage between the

plaintiff and Kandasamy. The plaintiff is not disputing, having executed such a document. Section 29(2) of the Hindu Marriage Act is as follows:

Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the

dissolution of a Hindu Marriage, whether solemnized before or after commencement of this Act."" Hence, firstly the defendants in order to establish

their case has to satisfactorily prove that there has been a custom in the community in question, by which the marriage can be dissolved by an

agreement. Or in other words, a party who claims that a marriage duly solemnized was dissolved by a custom, has to state with precision and

clarity what that custom is. It is not enough to state that there is an ancient custom of divorce and that divorce could be obtained by even one party

executing a deed or from the caste Panchayat. The law requires to prove a fact, first he/she must plead the same and then prove by letting in

satisfactory oral and documentary evidence. Secondly, the party should convince the Court that whatever procedure required as per the said

custom has been complied with by the parties.

Let this Court first proceed to consider as to whether there is necessary pleading in this regard. In paragraph V of the plaint, the appellant/

plaintiff has pleaded as under:

It is now understood that while so doing, it has been written in the said deed, that the marriage between Kandasamy and the plaintiff was

cancelled. The parties are Hindu Vellala Gounder Community. There is no caste-custom of divorce with them. Hence, even if there is such a

recital, it has no legal effect. Still, the marriage relationship of the plaintiff and Kandasamy is subsisting."" The above claim of the appellant/plaintiff

has been dealt with and answered by the respondents/defendant in para 6 of the written statement, wherein it is stated as under:

Plaint paragraph 5 is correct in so far as it relates to the dissolution of marriage between the plaintiff and the late Kandasamy, the dissolution deed,

and the payment therefor. Now the plaintiff cannot be allowed to take advantage of her own fraudulent act upon the late Kandasamy and

especially after driving him to the brink of disappointment and desolation and finally suicide. The plaintiff has no tenable right to claim partition nor

can she ask the Court to overlook a substantial document of marriage dissolution deed.

From the above it is clear that when the appellant has categorically stated in the plaint that there is no custom of divorce in the community, the same

has not been denied in the written statement.

Yet another aspect also has to be taken note of. The appellant claims that they belong to Kongu Vellala Community as could be seen from

paragraph V of the plaint. But the same has not been dented by the defendants anywhere in the written statement.

The defendants in order to prove their case examined D.Ws. 2 to 5. All these witnesses have categorically stated that they belong to Nattu

Gounder and that there is a custom of dissolution of marriage. The Gounder community has different sects, which would include Vellala Gounder

and Nattu Gounder and that they have different customs of their own. Even assuming for the purpose of argument that there is a custom in the

Nattu Gounder sect to dissolve the marriage, the same need not be there in Kongu Vellala Gounder sect. None of the witness speak to the effect

that the custom in Nattu Gounder sect and Kongu Vellala Gounder sect are common and in particular, with regard to the dissolution of the

marriage. Hence this Court has to hold that the respondents have not proved by letting in satisfactory evidence about the customary dissolution in

their sect of the community.

Even assuming that there is a custom as claimed by the defendants, at the evidence stage, it has to be pointed out that none of the witnesses

speak about the procedure to be followed. It is not the case of the respondents that dissolution can be made by husband or wife by uttering some

words. Hence, necessarily follows that the claim of the respondent is that customary dissolution is only be execution of a document in the form of

an agreement. But if one looks at Ex.A-3 which according to respondents would dissolve the marriage, it had been signed only by the

appellant/plaintiff and the husband of the appellant had not signed the document.

To sum up, since (a) the respondents have not pleaded the existence in their community of a customary dissolution; (b) not denied the sect of

community to which they belong; (c) no satisfactory evidence has been let in to prove the custom; (d) witnesses have not spoken that the custom

prevalent in Nattu Gounder community is also the same in Kongu Vellala Gounder community; (e) none of the witnesses have spoken to about the

procedure to be followed for such dissolution of marriage; and (f) both the parties have not signed the document, this Court is inclined to hold that

the plea of the respondents that the appellant was divorced by the said Kandasamy even way back on 25.10.1984 has to be rejected.

Once this Court comes to such conclusion, the judgment and decree of the Courts below have to be set aside.

Inasmuch as the Courts below have upheld the claim of the appellant with regard to the share in the plaint schedule property, the suit has to be

decreed as prayed for.

The plaintiff has also claimed mesne profits at the rate of Rs. 2,000 per year. In the cross examination, the respondents have not disputed the

claim. In fact it may be stated, not a single question was put to the appellant disputing the claim. In fact the second defendant as D.W. 1 has not

deposed anything in that regard before Court. In these circumstances, this Court has no hesitation to award mesne profits claimed by the

appellant/plaintiff viz., Rs. 2,000 per year from the date of suit till date of delivery of her share as claimed in paragraph VI of the plaint.

The above discussion answers the question of law framed in this second appeal.

In the result, the second appeal is allowed. The decree and judgment of the Courts below are set aside. The suit O.S. No. 515 of 1988 is

decreed as prayed for. No costs.

Considering the fact that the suit is of the year 1988, the trial Court shall dispose of the final decree petition within six months from the date of

receipt of this order.