Civil Appeal No 3373 of 1979
From the Judgment and Decree dated 241
1979 of t he Karnataka High Court in Regular Second Appeal Nos 522 a nd 591 of 1973
RB Datar for the Appellants
SS Javali and Ranjit Kumar for the Respondents
The Judgment of the Court was delivered by KN SAIKIA J
This defendants  appeal by special lea ve is from the judgment of the High Court of Karnataka dat ed 241
1979 in regular Second Appeal Nos 5221973 and 59 11973 which arose out of the following facts
Mallappa Kulkarni had two sons Veerappa and Gurapp a Veerappa is survived by his son Lingappa
Gurappa a railw ay employee married Channavva first wife on 162
1928 b ut finding her issueless and sending her to her parent s vi l lage he married in 1935 his second wife Chinnavva who bo re him two daughters Shakuntalabai and Annapoornavva
Channav va first wife however used to pay occasional visits to Gura p pa
Chinnavva second wife died in 1943 whereafter Gurap pa is said to have married Nilavva
Gurappa retired in 1961 a nd settled permanently at Hubli constructing the suit house a nd himself occupied a part and let out the other part on ren t
After the death of Gurappa on 29111976 his issueless fir st wife Channavva demanded 13 share in his moveable and i m moveable properties but finding it difficult to acquire h er share sold her right to 13 share to 73 Lingappa son of late Veerappa on 293
1967 for Rs500 0
The other heirs having rejected Lingappa s request f or partition he instituted OS No 3871968 in the Court of Additional Munsif Hubli impleading Channavva Shakuntal a bai Annapoornavva and Nilavva describing her as havi ng illegal connection with deceased Gurappa as first secon d third and fourth defendants respectively for partition of 13 share in the suit house and the moveable properties a nd for possession thereof
The first defendant supported t he case of the plaintiff the other defendants contested t he suit and averred that the fourth defendant was lawful ly married wife of Gurappa
On the pleadings the followi ng issues inter alia were settled 1
Whether the plaintiff proves the execution of the sa le deed by defendant No 1 2
Whether the 1st defendant proves that she had valid tit le to the suit property and the alienation by her in favour of the plaintiff is valid and legal 3
Whether the plaintiff has derived any valid title by virtue of the sale deed in his favour 4
Whether the defendant No 4 proves that she is legal ly wedded wife of the deceased Gurappa On 1311971 the trial Court passed a preliminary decr ee for partition of 13 share of Gurappa s properties in t he hands of defendants 2 to 4 by metes and bounds
The secon d third and fourth defendants appealed to the Civil Judge at Hubli impleading the plaintiff and the first defendant as respondents in regular Appeal No 311971 and the learn ed Civil Judge by his judgment dated 212
1973 confirmed t he decree only modifying it to the extent of 16 share inste ad of 13 share holding the fourth defendant to be legal ly married wife of Gurappa
The second third and fourth d e fendants appealed therefrom in RSA 5911973 and t he plaintiff appealed in RSA 5221973
The High Court by t he impugned judgment dated 241
1979 allowed the plaintiff s appeal RSA No 522 restoring the decree of the tri al Court for 13 share and dismissed RSA 5911973 holdi ng that the fourth defendant was not legally married wife of Gurappa
Hence this appeal by defendants two and three
Mr RB Datar the learned counsel for the appellant s stating that the case hinges on the question of validity of fourth defendant s 74 marriage submits that the High Court while holding that t he fourth defendant was not legally married wife of Gurap pa overlooked vital evidence on record in proof of her custo m ary Udiki marriage with Gurappa who himself declared her as his wife wherefore she earned family pension after h er husband s Gurappa s death
Mr SS Javali the learn ed counsel for the respondents submits that there was no suff i cient evidence to establish the custom of Udiki marriage a nd at any rate no custom to support the dissolution of marria ge of the fourth defendant with her previous husband Guruli n gappa was pleaded or proved
Mr Datar replied that t he custom of Udiki marriage itself implied the dissolution of the earlier marriage of the woman and there was sufficie nt evidence in support of the custom of dissolution of t he previous marriage and thereafter the Udiki marriage of t he fourth defendant with Gurappa
The questions therefore are whether sufficient pro of of custom of Udiki marriage was adduced by the fourth d e fendant and whether Udiki marriage itself implied t he dissolution of the earlier marriage and if not wheth er separate custom of dissolution of her earlier marriage w as pleaded and proved
These were the questions in issue No 4
From the records we find that the custom of Udiki ma r riage was pleaded by the fourth defendant in her writt en statement stating that after the death of Chinnavva seco nd wife in the year 1943 Gurappa married her fourth defen d ant after she divorced her first husband Gurulingappa by mutual consent and the marriage was in Udiki form at Mir aj in accordance with their caste custom and that thereaft er she continued to live with Gurappa as his wife till h is death in the year 1966
She further stated that there was a custom of Udiki form of marriage in Panchamsale sub sect of Lingayat community to which she belonged and that there w as a custom for dissolution of marriage in her sub sect
S he also described the formalities of Udiki form of marria ge that a saree and a blouse were handed to her by the brid e groom Gurappa and the Mangalsutra was given by Gurappa aft er uttering Mantrums
The saree was worn by her and the Manga l sutra was tied round her neck
Considering the above in t he context of issue No 4 we entertain no doubt that the cust om of Udiki marriage was pleaded
It also appears that t he custom of dissolution of marriage prevalent amongst t he caste was also compositely pleaded to the above extent
We have to see whether the above custom or customs were prov ed by evidence
It would be logical first to take the question of custom of dissolu 75 tion
In the written statement filed by the second defenda nt it was stated that after Chinnavva s death in 1943 Gurap pa married the fourth defendant who divorced her first husba nd Gurulingappa by mutual consent
We have therefore to s ee whether the custom of Udiki marriage itself implied su ch prior dissolution
The relevant texts and instances reli ed on may be referred to for this purpose
In Virasangappa vs Rudrappa  Anr 1885 ILR 8 Madras 440 the questions were whether Kusava daughter of Rudrava who married Rudrappa was legitimate being born in lawful wedlock according to the custom of Lingayats a nd whether the said marriage was legalised by the custom to which the parties belonged it was found that Rudrava was 18 years earlier married to another person when she was 12 or 13 years old and out of Rudrava s next marriage with Rudra p pa in Udiki form Kusava was born
The defendant contend ed that the second marriage of a wife forsaken by the fir st husband was allowed amongst the Lingayats that such a marriage was known as Serai Udiki  giving a cloth as distinct from Lagna  or Dhara  the first marriage a nd that Rudrappa married Rudrava in the Serai Udiki form a nd that the plaintiff and all the members of the family and t he caste recognised that marriage and Kusava was therefor e legitimate and entitled to inherit
In that case eviden ce was produced to show that several marriages took place in Serail Udiki form which was accepted by the society and t he children were considered legitimate
It was held that t he parties were Sudras and the Lingayat owed its origin to Vasava who held that caste distinctions were unworthy of acceptance and who repudiated Brahamanical observances
It was observed that the sect was particularly represented in Mysore to a certain extent in Wynad also in ceded distri ct in Coimbatore and the South Canara in Bombay Presidency a nd that instances had been before the Court in which the rema r riage of widows amongst that sect had been supported
It w as found that Rudrava was deserted by her husband who had nev er consummated his martage and expressed himself ready to return and live with Rudrava only on the condition th at certain property was secured to him by deed
When th is request was not acceded to he took no further interest in Rudrava and left her without information about him and d id not prevent her from forming a new connection
It was al so in evidence that Rudrava was treated as a lawfully wedd ed wife both by the appellant and by the other members of t he family and there was proof to show that children of ma r riages contracted by wives deserted by their husbands we re not regarded as inferior in any respect to the parties to the suit and were received in the Maths of the sect a nd initiated as the children born of a first 76 marriage
The court also observed that in matters of th is kind heresay evidence like tradition may be received a nd direct evidence of such marriages was not always possib le and one of the ways in which they might be proved was fr om the manner of their living and from the way in which th ey were treated by the neighbouts
Kusava was accordingly he ld legitimate
In Mayne s Treatise on Hindu Law and Usage 11th Edn
at page 175 it is said When we examine the usages of the aboriginal races or of those who have not come under Brahamanical influence we find a system prevailing exactly like that described by Narada
Among the Jat population of the Punjab not only a widow but a wife who has been deserted or put away by h er husband may marry again and will have all the fights of a lawful wife
The same rule exists among the Lingayats of South Kanara
In Western India the second marnage of a wi fe or widow called Pat by the Maharattas and Natra in Guj a rat is allowed among all the lower castes
The cases in which a wife may remarry are stated by Mr Steele as bein g if the husband prove impotent or the parties continual ly quarrel if the marriage was irregularly concluded if by mutual consent the husband breaks his wife s neck ornamen t and gives her a chorchittee writing of divorcement or if he has been absent and unheard of for twelve years
Shou ld he afterwards return she may live with either party at h er own option the person deserted being reimbursed his ma r riage expenses
A widow s pat is considered more honourab le than a wife  but children by pat are equally legitimate wi th those by a first marnage
The right of divorce and seco nd marriage has been repeatedly affirmed by the Bombay Courts 
 In Encyclopaedia of Religion and Ethics edited by Jam es Hastings Vol
we find that the Lingayats are a religious community in India numbering nearly three mi l lions at the
census of 19 11 of whom more than half a re found in the southern districts of the Bombay Presidency
In the Bombay districts of Belgaum and Bijapur one third of t he population is Lingayat and in the adjacent district of Dharwar they constitute nearly 50 per cent of the tota l Beyond the limits of the Bombay Presidency Lingayats a re numerous in the Mysore and Hyderabad States
They also fo rm an important element 77 in the population of the north west corner of the Madr as Presidency
According to that Encyclopaedia the Lingayats are Dr a vidian that is to say they belong to a stock that w as established in India before the arrival of the Aryans
Of the Brahamanic triad Brahma Vishnu and Siva they acknow l edge only the god Siva whose emblem the linga they be ar on their persons
All wearers of the linga were proclaim ed equal in the eyes of God
The traditional Lingayat teach er is Basava
The denial of the supremacy of the Brahman s coupled with the assertion of the essential equality of a ll men constituted a vital departure from the doctrines of orthodox Hinduism
Other important innovations were t he prohibition of child marriage the removal of all restri c tion on widows remarrying
The Lingayats according to t he Encyclopaedia appear to consist of three groups of s ub divisions 1 Panchamsalis with full astavarna rites  2 NonPanchamsalis with astavarna rites 3 Non Panchamsal is without astavarana rites
The astavarna or eightfold sacr a ment is a principal Lingayat ceremony
While describing t he Lingayats marriage ceremony it goes on to say that the tyi ng of the tali is the binding portion of the ceremony
Befo re the tali is given to the bridegroom it is passed round t he assembly to be touched by all and blessed
As soon as t he bridegroom ties it on the bride all those present thr ow over the pair a shower of rice
The bridegroom places so me curemill seed and jagri or unrefined sugar on the bride s head and the bride does the same to the bridegroom
The remarriage of widows was one of the points on whi ch Basava insisted and was probably one of the biggest bon es of contention with the Brahmans
Widow remarriage is allow ed at the present day but the authorities at Ujjini see fit to disregard it
They say that among jangams it is prohibit ed and that among the other classes of Lingayats it is t he growth of custom
It also says Among Lingayats wid ow remarriage is common and divorce is permissible
The ord i nary law of Hindus is followed in regard to t he inheritance
 The Gazetteer of Bombay State Dharwar District 19 59 contains a description of Lingayats marriage and the ma r riage rules
At page 138 it says The Lingayats do n ot allow the children of brothers to intermarry nor may si s ter s children
Marriage with a mother s sister s daught er is also prohibited
A man may marry his sister s daughte r but if the sister be a younger sister such marriage is looked on with disfavour
Widow marriage is allowed at t he present day except amongst Jangamas
Divorce is permiss i ble
The chief feature of the 78 actual marriage ceremony is the tying on of the mangalsut ra bride s luck neck thread is performed by the bridegro om under the Jangama s discretion
The ceremony begins by t he mathapad bowing to the mangalsutra and proclaiming that it is about to be tied to the bride s neck
The bridegroom la ys his right hand on the bride s fight hand the mathapati la ys the lucky thread on the boy s hand
The teacher gives t he order to tye on the lucky thread and the bridegroom ties it on the girl s neck
 In the Castes and Tribes of Southern India by Edg ar Thurston first published in 1909 reprinted in 1975 it is said that the marriage of widows was one of the points on which Basava insisted and that the practice is widely fo l lowed and that divorce is permitted on proof of misconduc t
The husband can exercise his right to divorce his wife by proving before a Panchayat the alleged misconduct
The wi fe can only claim to divorce her husband when he has be en outcasted
Wives who have been divorced cannot remarry
T he above answers are given on the authority of the Ujjini mut t
It goes on to say There appears to be considerable dive r gence of opinion in other quarters
By some it is positive ly asserted that divorce is not permitted under any circu m stances that the husband and wife may separate on t he ground of incompatibility of temper or for misconduct a nd that in these circumstances the husband is at liberty to marry again while the wife is not
Others say that divor ce is permitted and that both parties are at liberty to rema r ry In connection with the Lingayats of South Canara it is recorded in the Indian Law Reports that second marriage of a wife forsaken by the first husband is allowed
Such ma r riage is known as serai udiki giving a cloth as disti n guished from lagna or dhara the first marriage In Hindu Law by SV Gupte 3rd Edn
II page 619 we read that divorce was not allowed by general Hindu law it was in some cases permitted by customs
Such custom howe v er prevailed only amongst the lower classes especially in the Bombay Presidency
Customs to be recognised by the Cou rt must be valid
Though Hindu law did not contemplate divorc e still in those districts where it was recognised as an established custom it had the force of law
In Sankarling am vs Subban 1894 17 Madras 479 divorce by consent was he ld valid as a matter of custom of the Pakhali caste of Ahmed a bad observing that there was nothing immoral in a cas te custom by which divorce and remarriage were permitted by mutual agreement
There was no invalidity in a custom by which married couple on account of disagreement between th em by consent could divorce and were 79 divorced by parties approaching the headman and other rel a tions paying certain amount and taking away tali or t he sacred thread from round the wife s neck and giving it ba ck to the husband
It was only when the divorce was enforc ed against the wishes of his wife that the custom permitt ed divorce would be illegal
1n Pakhali Jina Magan vs B ai Jethi ILR it was held that a custom of divorce with mutual consent of husband and wife stated to exist among the Hindus of Pakhali caste of Ahmedabad was n ot repugnant to Hindu Law
When it was contended that t he institution of divorce was itself opposed to the concept of Hindu law and that there was no decision of any Court in India which held a custom of divorce as valid as it w as observed that would be going too far and that it was o b served in Tagore Law Lectures 1908 on Customs and Custo m ary Law in British India divorce is not contemplated by the Hindu Law but it is not repugnant to its principles a nd if there be a well established custom in its support it m ay override the general provisions of that law
 It was furth er observed that there had been many cases in our Courts ar t sing out of divorce in the lower castes
1n all those cas es even where it was held that the divorce had not been prope r ly granted it had been taken for granted that the custom of divorce can validly exist in a particular community esp e cially if it is a sudra community but that divorce grant ed cannot be forced by the caste against an Unwilling person
In Shivalingiah vs Chowdamma AIR 1956 Mys 17 it h as been held that when a woman lives for a number of years in close association with a man and bears children who a re acknowledged by the man as born to him relations and pe r sons of the village treat them as such there is a presum p tion of legitimacy as vice and immorality are not usual ly attributed to such association between a man and a woman
In Rahi vs Govinda Valad Teja Bom 97 t he legitimacy of Pat  or Pata  or Natra  marriages among t he Marathas of Bombay Presidency was accepted
Relying on Hin du law of Strange and the statement of Mr Steele who in h is Law and Custom of Hindoo castes which has been accepted as authority by the Courts said that in that Presidency thou gh forbidden in the present age Kaliyug to twiceborn caste s it was not forbidden to sudras and that Manu appeared to have limited the prohibition to the twiceborn classes
Th is has been referred to by Sir Gooroodas Bannerjee in h is Tagore Law Lectures on Hindu Law of Marriage and Stridhan a lecture VI
Devala expressly permitted re marriage of a ll classes
Narada also said Nashte mrite prabrajite klaibe cha patite patau Pan 80 chaswapatsu narinang patih anyo bidhiate
 In cases of first husband having perished or di ed naturally or gone abroad or if he is impotent or have lo st his caste in these five calamities a woman may take anoth er husband
In Kautilya s Arthasastra See R Shamasastry 2nd Ed p 189 which has been claimed to have been a work during t he period 32 1 296 BC anterior therefore to Manu a nd Yajnavalkya said If a husband either is of bad characte r or is long gone abroad or has become a traitor to his kin g or is likely to endanger the life of his wife or has fall en from his caste or has lost virility he may be abandoned by his wife He further writes A woman hating her husba nd cannot dissolve her marriage with him against his will
N or can a man dissolve his marriage with his wife against h er will
But from mutual enmity divorce may be obtain ed parasparam dveshanmokshah
If a man apprehending dang er from his wife desires divorce mokshamichchhet he sha ll return to her whatever she was given on the occasion of h er marriage
If a woman under the apprehension of danger fr om her husband desires divorce she shall forfeit her claim to her property marriages contracted in accordance with t he customs of the first four kinds of marriages cannot be dissolved
 There is no doubt that the principle that once a marriage always a marriage was a subsequent development
Ancient Hindu Law also said Tasmindesha ya acarah paramparyakramagatah Varnanam santa i ralanam sa sadachara uchyate
Practice that obtains from generation to generation amo ng the pure and mixed classes is called sadachara
The next question is whether the custom of Udiki ma r riage would be a valid custom under law
In Edward vs Je n kins the characteristics of a val id custom are stated
They are that it must be of immemori al existence it must be reasonable it must be certain and it must be continuous
Every custom must have to be in exis t ence preceding memory of man and if the proof was carri ed back as far as living memory would go it should be presum ed that the right claimed had existed from time of legal mem o ry
This was reiterated in Mohammed Ibrahim vs Shaik Ibr a him AIR 1922 PC 59
In Ramalakshmi Ammal vs Sivanant ha Perumal Sethurayar 14 MIA 81 570 it was held that it was the essence of special usag es modifying the ordinary law in that case of successio n that they should be ancient and invariable it is furth er essential that they should be established to be so by cle ar and unambiguous evidence and that it is only by means of such findings that the Courts can be assured of their exis t ence and that they possess the conditions of antiquity a nd continuity and certainty on which alone their legal title to recognition depends
Custom must be proved and the burden of proof is on the person who asserts it
The Privy Council in Raja Rajendra Narain vs Kum ar Gangananda  Ors AIR 1925 PC 213 held that after t he existence of a custom for some years has been proved by direct evidence it can only as a rule be shown to be immemorial by hearsay evidence and it is for this reas on that such an evidence is allowable as an explanation to t he general rule
In DC Bara Banki vs Receiver of the Esta te of Choudhry  Ors AIR 1928 PC 202 it has been held th at breach of a custom in a particular instance need not destr oy it for all times
In Effuah Amissah vs Effuah Krabah A IR  it was held that material customs must be proved in the first instance by calling witnesses acquaint ed with them until a particular custom has by frequent proof in the Court becomes so notorious that the Courts take judici al notice of it
A custom cannot be extended by logical pro c ess
In Saraswati vs Jagadambal   it h as been held that oral evidence as to instances which can be proved by documentary evidence cannot be fairly relied up on to establish custom when no satisfactory explanation f or withholding the best evidence is given
Custom cannot be extended by analogy and it cannot be established by a prio ri method
Uzagar Singh vs Mst
Jeo   la id down that the ordinary rule is that a custom general or otherwise has to be proved under Section 57 of the Eviden ce Act
However nothing need be proved of which the Courts c an take judicial notice
When a custom has been judicial ly recognised by the Court then it passes into the law of t he land as proof of it becomes unnecessary under Section 57 1 of the Evidence Act
In regard to marriage says S ir Gooroodas Banerjee the ordinary Hindu Law does not a nd cannot form the common rule for all sects alike
 Examining the written statements and the evidence a d duced in this case we find that the fourth defendant Neela va as DW 7 deposed Prior to my marriage with late Gurappa it was said that during my childhood I had married
The pri or husband s name was one Gurulingappa
When I was aged abo ut 16 or 17 years my marriage with Gurulingappa was dissolve d
The dissolution of the marriage took 82 place in the house of my elder brother Parappa Sallapur at Hubli
In the presence of one NM Patil SR Hiremath t he then Chief Officer my eider sister and her husband and my mother s brother s son one Rachappa my prior husband Gur u lingappa the dissolution took place
When I was aged abo ut 23 or 24 years my marriage with the late Gurappa took pla ce at Miraj
 The marriage which took place at Miraj was in Udiki form
There was a custom of Udiki form of marriage in Panchamasale subject of Lingayat community
I belong to Panchamamasale subject
There is also a custom for dissol u tion of marriage in our section
The dissolution of my marriage with Gurulingappa was effected by my declaration in the presence of elders that I did not require Gurulingap pa as my husband and by similar declaration by Gurulingap pa that he did not require me as his wife
That declaration w as followed by our mutual expression of liberty to marry anot h er spouse
That was approved by the elders present then
 In cross examination on behalf of the plaintiff she sai d Since my marriage with Gurulingappa had been performed wh en I was too young and since I did not desire to continue as his wife a situation arose for the dissolution of t he marriage
There was no other reason for the dissolutio n About 13 years after my marriage with Gurulingappa t he marriage was dissolved I was not residing in my husband s house ever since my marriage with Gurulingappa but I w as residing in my parent s house
 She also deposed that to h er knowledge her s was the only case where there was dissol u tion in their family from the time of their ancestors
H er mother was married in usual form and not in Udiki form
N or her brothers or sisters got a dissolution of their ma r riages
She also did not know if there were instances of dissolution of marriages among the relations of Gurulinga p pa
She denied the suggestion that there was no dissoluti on of the marriage and that she continued to be the wife of Gurulingappa
DW 8 Parappa eider brother of the four th defendant testified about her re marriage with Gurapp a
According to him there was a custom in the Lingayat commun i ty for dissolution of the marriage and he could give o ut certain instances of Udiki form of marriage in their famil y relations and friends
In his own family his eider sister s marriage was gone through in Udiki form
His wife s eid er sister was also married in Udiki form
He did not give t he names of the persons having entered into Udiki form of marriage at that time but said that there were thousands of instances
The dissolution of the marriage of fourth defen d ant took place in his Railway Quarters at Hubli
Outsider s namely Shri SR Hiremath NM Patil were present
Amo ng his relations his eider sister his cousin Gurulingapp a his sister and the fourth defendant were present
He h ad written a letter to SR Hiremath requesting him 83 to come over there
He requested the other persons also to come there
It was about 730 or 800 PM when the dissol u tion took place
The fourth defendant expressed that she h ad been married during her childhood and she was not going to continue with Shri Gurulingappa
Gurulingappa also express ed that in view of the big disparity in age between himself a nd the fourth defendant and in view of the fact that she h ad expressed her intention for dissolution he had no objecti on for dissolution
Thereafter Hiremath Patil and his rel a tions also consented for the dissolution of the marriag e Parappa s mother removed the Tali from the neck of t he fourth defendant and handed over the same to Gurulingapp a Gurulingappa thereafter went away telling that he was at liberty to marry again and he later had married again
He clearly stated that as per the custom of the caste the re was nothing more to be done for the dissolution
This wi t ness further deposed that in 1943 the Udiki marriage of t he fourth defendant took place at Miraj
At the time of r e marriage she was aged about 19 or 20 years
Parappa contac t ed Gurappa for the re marriage
Gurappa brought his fath er with him and the re marriage was fixed
He got his eid er sister and his brother in law from Bijapur
His moth er Rachappa and his wife were present at the time of re ma r riage in addition to those who came from Bijapur
Gurap pa and Jamakhandi were already there
A priest was officiati ng the re marriage
The lady who had already undergone Udi ki marriage was requested to present the clothes to the brid e groom and gold was brought by Gurappa and that was hand ed over to the priest who in turn gave it to the bride
Prese n tation of saris and blouses was made by Udiki form of ma r riage
Mangalsutra had been brought and it was given to t he priest who enchanted some Mantrum and thereafter it w as given to Gurappa who in turn tied it round the neck of t he fourth defendant
The above said function of tying Mangals u tra took place in God s room
Then the married couple o f fered their pranams to God
Thereafter the priest tied t he ends of the clothes of bride and bridegroom who thereafte r prostrated before the elders to receive their blessings
It appears that this witness was thoroughly cross examined b ut could not be dislodged
DW 9 Gangadhara deposed that he knew as to Gurap pa having been married in Udiki form and that the fourth d e fendant Neelava was his Udiki wife
He was present at t he marriage
He gives vivid description of the ceremony inclu d ing the persons who were present
He testified that t he priest enchanted mantrum and thereafter handed over t he Guladali to Gurappa and as directed by the priest to t ie Guladali around the neck of his wife Gurappa tied t he Guladali
Mr Datar says Guladali meant Tali
The clothi ng was presented by each 84 party to the other
As per the direction of the priest t he bride made pranams to the elders present there
This witne ss too was thoroughly cross examined but could not be shak en from his testimony
DW 10 Neelakantappa Patil corroborated DWs8 and 9 in material particulars
DW 11 Rachappa testified to the diss o lution of the fourth defendants marriage with Gurulingap pa in vivid details
DW 12 Gurulingappa himself testified th at his marriage with the fourth defendant was dissolved th us fully corroborating the other witnesses
He clearly depos ed that the fourth defendant s mother removed the Tali from h er neck and gave it to him and he took it went home and subs e quently married again
Mr Datar states on behalf of the second  third defen d ants that Neelava is dead and that while she was alive s he was addressed as younger mother by the children
It is n ot denied that till her death she enjoyed the family pension as widow of Gurappa to the knowledge of the plaintiff
There is no evidence to show that she was not accepted as wife of Gurappa by the members of the community though in the plai nt she was described as having had illegal connections wi th Gurappa
The learned counsel for the respondents submits that a ll the witnesses were near relations and hence could not be believed
We do not agree
All elders were not relatives a nd their corroborated testimony could not be discarded
T he second and third defendants in their written statemen ts asserted that Neelava was legally married wife of Gurapp a
The High Court ignored these vital pieces of evidence whi ch the learned Civil Judge rightly considered
From the above evidence on record appreciated in t he light of the case law on the subject and the authoritati ve texts as discussed above relating to the custom of dissol u tion and Udiki form of marriage prevalent among the Linga y ats who are a religious sect following teachings of Basav a we entertain no doubt that there has been ancient and unbr o ken customs of dissolution of marriage and of serai Udi ki marriage among the Pnachamasale Lingayats which was alrea dy judicially noticed by the Courts and that the marriage of the fourth defendant with Gurulingappa was proved to ha ve been customarily dissolved and that she was subsequent ly legally married with Gurappa in the valid customary form of Udiki marriage whereafter she lived with Gurappa as hu s band and wife until Gurappa died and that thereafter s he enjoyed the family pension by dint of her being nominated as 85 wife by Gurappa to the knowledge of all concerned
She w as accepted by the community as wife of Gurappa even after h is death
There is therefore no scope for declaring t he marriage illegal posthumously
The result is that this appeal is allowed the judgme nt of the High Court is set aside and the judgment and decr ee of the Civil Judge are restored without any order as to costs
YL Appe al allowed


Summary:
Appellants Nos 1 and 2 were elected on June 30 1987 as Mayor and Deputy Mayor respectively of the Municipal Corp o ration of Bhavnagar Gujarat for a period of one year
On May 21 1988 a notice was issued by them for convening a meeting of the members of the Corporation on June 1 1988 to elect a Mayor and Deputy Mayor and for certain other bus i ness mentioned in the Agenda circulated
Subsequently on May 31 1988 appellant No 1 gave instructions by a lett er to the Deputy Secretary of the Corporation to postpone t he meeting as he had to go to Gandhinagar for urgent work of the Corporation
The said instructions were given by appe l lant No 1 after consulting 32 members of the Corporatio n Pursuant to the said letter and the instructions contain ed therein appellant No 3 the Secretary of the Corporatio n issued a letter addressed to all the members of the Corpor a tion informing them that the meeting scheduled for June 1 1988 had been postponed
In spite of the aforesaid lett er postponing the meeting 19 members of the Corporatio n presumably belonging to the minority party or partie s assembled at the place indicated in the notice dated May 2 1 1988 and elected respondent Nos 1 and 2 as Mayor and Depu ty Mayor
Neither the Commissioner of the Corporation nor i ts Secretary or Deputy Secretary was present at the said mee t ing and the minutes of that meeting were not recorded
As the appellants Nos 1 and 2 did not hand over t he charge to respondents Nos 1 and 2 the latter filed a wr it petition in the High Court for being declared as legal ly elected Mayor and Deputy Mayor and for an order that char ge of the said posts should be handed over to them
111 The Single Judge dismissed the Writ Petition taking t he view that as the Mayor in exercise of the powers conferr ed upon him under subclause c of clause 1 of Chapter II of the Schedule under section 453 in the Bombay Provincial Munic i pal Corporations Act 1949 can issue a notice for conveni ng the meeting he is also entitled to the power to cancel or rescind the notice under the provisions of section 21 of t he Bombay General Clauses Act 1904
Division Bench of the High Court however allowed t he Letters Patent Appeal filed by respondents Nos 1 and 2 taking the view that it was bound by the view taken by th is Court in Chandrakant Khaire vs Dr Shantaram Kale and ot h ers  where it was observed that a proper ly convened meeting could not be postponed
The proper cour se to adopt is to hold the meeting as originally intended a nd then and there adjourn it to a more suitable date
In the appeal by special leave filed by the appellan ts before this Court it was contended on behalf of the appe l lants that the Division Bench had committed an error in following the observations made in Chandrakant Khaire s ca se as that case could be distinguished on facts that t he question raised in this appeal was practically covered on the basis of analogy by the ratio of the decision of th is Court in Mohd Yunus Saleem vs Shiv Kumar Shastri and ot h ers  which dealt with analogous provisio ns of the Representation of the People Act 1951 and that in view of the provisions of Section 21 of the Bombay Gener al Clauses Act 1904 which were applicable to the case sin ce appellant No 1 had the power to convene the meeting of t he members of the Corporation it must be held that he also h ad the implied power to cancel or postpone the meeting
Respondent No 1 contested the appeal and submitted th at the decision in Chandrakant Khaire s case was direct ly applicable to the case and it must be held that the appe l lant No 1 had no power to cancel the notice convening t he meeting and hence it must be held that the meeting at whi ch the supporters of respondent No 1 which met and elect ed respondent No 1 as Mayor was validly held and the resol u tion appointing respondent No 1 was validly passed
Partly allowing the appeal and remanding the matter ba ck to the High Court this Court HELD 1 Unless the object of the context or inqui ry otherwise warrants the term adjournment  in connection wi th a meeting should 112 be applied only to the case of a meeting which has alrea dy been convened and which is thereafter postponed and not to a case where a notice convening a meeting is cancelled a nd subsequentiy a notice for holding the same meeting on a later date is issued as in the instant case
120E F 2 Mayor had the implied power to cancel a meeting or postpone a meeting which was duly convened before the sa id meeting commenced and to convene the same on a subseque nt occasion
It is needless to say that this power must be exercised by the Mayor bona fide and not for a collater al purpose
The power must again be exercised for a prop er purpose
If the Mayor is unable to show this then t he postponement of the meeting must he held to he bad
But it is not possible to say that the Mayor had no power to canc el a meeting duly convened and to direct that the same shou ld he held on a later day provided that the power was exercis ed bona fide and for a justified purpose
122G H 123A Chandrakant Khaire vs Dr Shantaram Kale and other s    distinguished
3 The principles underlying section 21 of the Bomb ay General Clauses Act would he clearly applicable in conside r ing the scope of the powers of the Mayor of a Municip al Corporation set out in Clause 1 of Chapter II of the sa id Schedule in the said Act and in particular in sub clau se c of the said clause
The rules in the Schedule have be en framed under the statutory provisions of the said Act a nd section 453 of the said Act provides that the rules in t he Schedule as amended from time to time shall he deemed to he part of that Act
The power of the Mayor conferred und er clause 1 of Chapter II of the said Schedule must be regard ed as a statutory power as distinguished from the powers of directors of a company which are derived strictly from t he Articles of Association of the Company which are contractu al in natore
125A C 4 There appears to be no reason to take the view th at the principles underlying section 21 of the Bombay Gener al Clauses Act would not apply to the said powers of the Mayo r In the instant case appellant No 1 the Mayor of respon d ent No 5 Corporation had the power to cancel the noti ce convening the meeting before the commencement of the meeti ng with a view to convene a meeting on a later date
125D Smith vs Paringa Mines Ltd 1906 2 Ch
103 disti n guished
Mohd Yunus Saleem vs Shiv Kumar Shastri and Ors    relied on
113 Babubhai Girdharbhai Patel vs Manibhai Ashabhai Patel Others 1975 16 Gujarat Law Reporter 566 referred to
RK Jain vs Bar Council of UP  Ors AIR 1974 61 Allahabad 211 approved