VENKATA REDDI AND ORS. v. POTHI REDDI

 Appeal186 of 2001 Special Leave Petition2436 of 2000 DR.SURAJMANI STELLA KUJUR Vs DURGA CHARAN HANSDAH & ANR DATE OF JUDGMENT: 14 02 2001 K.T.Thomas R.P.Sethi SETHI J Leave granted. Who is a "Hindu" for the purposes of the applicability of the Hindu Marriage Act 1955 hereinafter referred to as "the Act") is a question of law to be determined in this appeal. Section 2 of the Act specifies the persons to whom the Act is applicable Clauses (b) andof Sub sectionof Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva a Lingayat or a follower of the Brahmo Prarthana or Arya Samaj and to persons who is a Buddhist Jaina or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim Christian Parsi or Jew by religion. The applicability of the Act is therefore comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims Christians Parsis or Jews by religion. The term "Hindu" has not been defined either under the Act or Indian Succession Act or any other enactment of the Legislature. As far back as in 1903 the Privy Council in Bhagwan Koer v. J.C. Bose & Ors. Calcutta Series 11] observed: "We shall not attempt here to lay down a general definition of what is meant by the term ’Hindu’. to make it accurate and at the same time sufficiently comprehensive as well as distinctive is extremely difficult. The Hindu religion is marvellously catholic and elastic. Its theology is marked by eclecticism and tolerance and almost unlimited freedom of private worship. Its social code is much more stringent but amongst its different castes and sections exhibits wide diversity of practice. No trait is more marked of Hindu society in general than its horror of using the meat of the cow. Yet the Chamaras who profess Hinduism but who eat beef and the flesh of dead animals are however low in the scale included within its pale. It is easier to say who are not Hindus not practically and separation of Hindus from non Hindus is not a matter of so much difficulty. The people know the differences well and can easily tell who are Hindus and who are not The Act is therefore applicable to: "(1) All Hindus including a Virashaiva a Lingayat a Brahmo Prarthana Samajist and an Arya Samajist Budhists Jains Sikhs In this appeal the parties are admittedly tribals the appellant being a Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution the Act can be applied to Scheduled Tribes as well by a further notification in terms of Sub sectionof Section 2 of the Act. It is not disputed before us that in the Constitution Scheduled Tribes) Order 1950 as amended by Scheduled Castes and Scheduled Tribes OrderActs 63 of 1956 108 of 1976 187 and 15 of 1990 both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that "the parties to the petition are two Tribals who otherwise profess Hinduism but their marriage being out of the purview of Hindu Marriage Act 1955 in light of Section 2(2) of the Act are thus governed only by their Santal Customs and usage". The appellant has however relied upon an alleged custom in the Tribe which mandates monogamy as a rule. It is submitted that as the respondent has solemnised a second marriage during the subsistence of the first marriage with the appellant the second marriage being void the respondent is liable to be prosecuted for the offence punishable under Section 494 of the Indian Penal Code. No custom can create an offence as it essentially deals with the civil rights of the parties and no person can be convicted of any offence except for violation of law in force at the time of commission of the act charged. Custom may be proved for the determination of the civil rights of the parties including their status the establishment of which may be used for the purposes of proving the ingredients of an offence which under Section 3(37) of the General Clauses Act would mean an act or omission punishable by any law by way of fine or imprisonment Article 20 of the Constitution guaranteeing protection in respect of conviction of offence provides that no person shall be convicted of any offence except for violation of law in force at the time of commission of the act charged as an offence. Law under Article 13 clause of the Constitution means the law made by the Legislature including intravires statutory orders and orders made in exercise of powers conferred by the statutory rules. The expression custom and usage" has been defined under Section 3(a) of the Act as: "the expression ’custom’ and ’usage’ and rule which having been continuously and uniformly observed for a long time has obtained the force of law among Hindus in any local area tribe community group or family Provided that the rule is certain and not unreasonable or opposed to public policy and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the For custom to have the colour of a rule or law it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient certain and reasonable Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence. In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya held: "It is of the essence of special usage modifying the ordinary law of succession that they should be ancient and invariable and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the courts can be assured of their existence and that they possess the conditions of antiquity and certainty on which alone their legal title to This Court in Mirza Raja Pushpavati Vijayaram Gajapathi Raj & ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. again reiterated the same position of law regarding the establishment of a custom upon which a party intends to rely. The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 saving the validity of a marriage solemnised prior to the commencement of the Act which may otherwise be invalid after passing of the Act Nothing in the Act can affect any right recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. In this case the appellant filed a complaint in the Court of Chief Metropolitan Magistrate New Delhi stating therein that her marriage was solemnised with the respondent in Delhi according to Hindu rites and customs". Alleging that the respondent has solemnised another marriage with the Accused No.2 the complainant pleaded: "That the accused No.1 has not obtained any divorce thro’ the Court of Law upto this date and hence the action of the accused No.1 is illegal and contravene the provision of law as laid down under Section Nowhere in the complaint the appellant has referred to any alleged custom having the force of law which prohibits the solemnisation of second marriage by the respondent and the consequences thereof. It may be emphasised that mere pleading of a custom stressing for monogamy by itself was not sufficient unless it was further pleaded that second marriage was void by reason of its taking place during the life of such husband or wife. In order to prove the second marriage being void the appellant was under an obligation to show the existence of a custom which made such marriage null ineffectual having no force of law or binding effect incapable of being enforced in law or non est. The fact of second marriage being void is a sine qua non for the applicability of Section 494 IPC. It is settled position of law that for fastening the criminal liability the prosecution or the complainant is obliged to prove the existence of all the ingredients constituting the crime which is normally and usually defined by a statute. The appellant herself appears to be not clear in her stand inasmuch as in her statement in the court recorded on 24th October 1992 she has stated that "I am a Hindu by religion". The complaint was dismissed by the trial court holding "there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient". the High Court vide the judgment impugned in this appeal held that in the absence of notification in terms of sub sectionof Section 2 of the Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law. In view of the fact that parties admittedly belong to the Scheduled Tribes within the meaning of clause of Article 366 of the Constitution as notified by the ConstitutionOrder 1950 as amended by Scheduled Castes and Scheduled Tribes Order Amendment) Acts 656 1076 187 and 190 passed in terms of Article 342 and in the absence of specific pleadings evidence and proof of the alleged custom making the second marriage void no offence under Section 494 of the Indian Penal Code can possibly be made out against the respondent. The Trial Magistrate and the High Court have rightly dismissed the complaint of the appellant Learned Counsel appearing for the appellant however submitted that even if the second marriage was not void for the purposes of attracting the applicability of Section 494 and holding the respondent guilty of bigamy the appellant is entitled to maintenance succession and other benefits on account of her being the legally wedded wife of the respondent. We cannot adjudicate upon such a proclaimed right of the appellant. The appellant is at liberty to get her right established by way of civil proceedings in a competent court of jurisdiction. If any such proceedings are initiated the same would be decided on their merits in accordance with the principles of pleadings and proof not being influenced by any of the observations made by the trial magistrate or the High Court. There is no merit in this appeal which is accordingly dismissed

Summary: Provision makes it clear that the law is and has always been that upon the father’s insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest Venkata Reddy, the father of the appellants. At that time only the appellants 1 and 2 were born while the third appellant was born later. The father’s one third share was put up for auction by the Official Receiver and was purchased by one Karuppan Pillai for Rs. 80/-. The Official Receiver then put up for auction the two-third share belonging to appellants 1 and 2 on July 27, 1936, which was purchased by the same person for Rs. 341/-. He sold the entire property to the respondent Pethi Reddy on May 25, 1939, for Rs. 300/-. The appellants instituted a suit on February 1, 1943, for the partition of the joint family property to which suit they made Pethi Reddy a party and claimed thereunder two-thirds share in the property purchased by him. In that suit it was contended on behalf of the respondent that on their father’s insolvency the share of the appellants in the joint family property also vested in the Official Receiver and that he had the power to sell it. The contention was negatived by the trial court which passed a preliminary decree for partition in favour of the appellants. PROCEDURAL HISTORY:The decree was affirmed in appeal by the District Judge and eventually by the High Court in second appeal, except with a slight variation regarding the amount of mesne profits. The decision of the High Court is dated November 18, 1946. On January 18, 1946 the appellants made an application for a final decree which was granted ex parte on August 17, 1946. At the instance of the present respondent this decree was set aside. By that time the new provision, that is, s. 28A of the Provincial Insolvency Act, had come into force. On the basis of this provision it was contended by the respondent that the appellants were not entitled to the allotment of their two-thirds share in the property purchased by him inasmuch as that share had also vested in the Official Receiver. The District Munsif held that Act 25 of 1948 which introduced s. 28A did not affect the preliminary decree for partition since it had been passed on August 20, 1943. Therefore, restored the ex parte final decree which had been set aside on December 17, 1950. The appeal preferred by the respondent against the decision of the District Munsif was dismissed by the Principal Subordinate Judge, Salem, whereupon he preferred a second appeal before the High Court. The High Court allowed the appeal and dismissed the application of the appellant for passing the final decree. Hence, present appeal was filed by Appellant. ISSUE BEFORE THE COURT:Whether the meaning to be given to the expression final decision’ occurring in the first proviso to s. 28 A of the Provincial Insolvency Act, 1920 (Act No. 5 of 1920), introduced by Act No. 25 of 1948?Whether the preliminary decree for partition passed in this case which was affirmed finally in second (1) I.L.R. [1943] Mad. 83?Whether it is in a mort- gage suit or a partition suit? RATIO OF THE COURT:The objects and reasons set out in the bill which sought to introduce this provision were to bring the provisions of the provincial insolvency Act in line with those of the Presidency Towns Insolvency Act in so far as the vesting of the joint family property in the Official Receiver upon the father”s insolvency was concerned. While under the Presidency Towns Insolvency Act, in a case of this kind, the disposing power of the father over the interest of his undivided sons also vests in the Official Receiver and not merely the father’s own interest in the joint family property’ there was divergence of opinion amongst the High Courts in India as to whether under the Provincial Insolvency Act the father’s disposing power over his undivided sons’ interest also vests in the Official Receiver.A Full Bench of the Madras High Court held in Ramasastrulu v. Balakrishna Rao (1) that it does not. It was in the light of this decision that in the appellants suit for partition, a preliminary decree was passed with respect to their two- thirds interest in the joint family property which had been sold by the Official Receiver. In the course of the decision of the full Bench a suggestion was made that the legislature should step in and bring the provisions of the Provincial Insolvency Act in the relevant respect in line with those of the Presidency Towns Insolvency Act. The new provision makes it clear that the law is and has always been that upon the father’s insolvency his disposing power over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest. The-provision is thus declaratory of the law and was intended to apply to all cases except those covered by the two provisos. The court observed here only with the first provision. This proviso excepts from the operation of the Act a transaction such as a sale by an Official Receiver which has been the subject of a final decision by a competent Court.The short answer to the reason given by the High Court is that even a money decree passed in a suit would cease to be a final decision because if the judgment- debtor against whom the decree is pawed does not pay the amount voluntarily execution proceedings will have to be taken for re-‘ covering the amount from him. It would thus lead to an absurdity if the test adopted by the High Court is accepted. In support of the High Court’s view a few decisions were cited at the bar but as they are of no assistance we have not thought it fit to refer to them.The court however, refer to a decision of this court upon which reliance was placed by the respondents. That is the decision in Vakalapudi Sri Ranga Rao and others V. Mutyala Ammanna (1) in which it was held that a particular order was not a final decision within the meaning of the first proviso to S. 28-A. There, in a suit for partition and another suit for possession of the suit property and arrears of rent, it was contended that upon the father’s insolvency the Official Receiver was in- competent to sell the son’s interest in the joint family property. The contention was negatived by the trial court but upheld in appeals by the Subordinate judge who remanded the suits to the trial court with certain directions. Appeals preferred against his decision were dismissed by the High Court. Before the decision of the suits after remand, the Amending Act, XXV of 1948 came into force and it was contended before the trial court that in view of the new provision the sale by the Official Receiver must be held to be good even so far as the sons’ interest was concerned. This contention was negatived by the trial court on the ground that the decision of the High Court on the point was a “final order’ within the meaning of the proviso. The District judge, before whom appeals were preferred, however, negatived the contention and held that there was no final order with regard to the sale by the Official Receiver. The sale made by the Official Receiver during the insolvency of the appellants’ father was the subject of a final decision by a competent court inasmuch as that court decided that the sale was of no avail to the purchaser at the Official Receiver had no power to effect that sale.. Since they have established what was required to be established by them, they are entitled to a final decree and the High Court was in error in dismissing their application in that behalf. DECISION HELD BY COURT:The judgement of this case was given by JUSTICE MUDHOLKAR stated that in this case. In the result the court allows the appeal, set aside the judgment and decree of the High Court and restore that of the trial court as affirmed in appeal by the learned Subordinate judge. Costs in this court and in the High Court will be borne by the present respondent. The remaining costs will be home as ordered by the first appellate court. Appeal allowed.