SHAKUNTALABAI & ANR. versus L.V. KULKARNI & ANR.

Citation: [1989] 2 S.C.R. 70 · Decided: 28-03-1989 · Supreme Court of India · Bench: G.L. OZA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
SHAKUNTALABAI & ANR. 
v. 
L.V. KULKARNI & ANR. 
MARCH 28, 1989 
[G.L. OZA AND K.N. SAIKIA, JJ.) 
Hindu Law-Udiki form of marriage prevalent among Lin-
gayats-Ancient and unbroken custom of dissolution of marriage-
Whether prevalent-Proof of-Section 57-Customs-Judicially recog-
nised by Court-Passes into law-Proof unnecessary. Serai Udiki mar-
riage among Panchamasal Lingayats-Custom-Proof of 
This is defendants' appeal arising ont of a suit for partition. 
One Mallappa Kulkarni had two sons: Veerappa and Gurappa. 
Verrappa is survived by his son Lingappa. Gurappa, who was in the 
D 
service of Railways married Channavva (first wife) on 16.2.28 but since 
she remained issueless, he remarried in 1955 Chinnavva (second wife). 
From this marriage two daughters were born viz. Shakuntlabai add 
Annapoornava. Consequent upon the death of his second wife Gurappa 
is said to have married Nilavva accroding to customary Udiki marriage. 
E 
After retirement Gurappa settled permanently at Hubli where he 
had house, property etc. After the death of Gurappa, his first wife 
Channavva claimed '!3rd share in the property. Having failed to get the 
same, she sold her \!Jrd share to Lingappa. Lingappa also could not 
procure the I/3rd share from defendants by mutual negotiation. There-
upon he filed a suit for partition claiming his '!3rd share in the immov-
F 
able properties left by Gurappa. In the suit he impleaded Channavva 
(first wife) as Defendant No. I and the children from 2nd wife as 
Defendant Nos. 2 & 3 and Nillava was impleaded as Defendant No. 4, 
who was de~cribed as having illegal connections with the deceased 
Gurappa. 
G 
The Additional Munsiff, Hubli who tried the suit passed a pre-
liminary decree for partition of '!3rd share of Gurappa 's properties in 
the hands of the defendants 2 to 4 by metes and bounds. Defendants 2 to 
4 contested that Defendant No. 4 was lawfully married wife of Gurappa. 
Defendants 2 to 4 appealed to the Civil Judge at Hubli impleading 
H the plaintiff and Defendant No. I as respodents. The Civil Judge 
70 
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SHAKUNTALABAI v. L.V. KULKARNI 
71 
modified the decree and granted I /6th share holding the 4th defendant 
to be legally married wife of Gurappa. Being dissatisfied by the said 
order, the plaintiff as also Defendants 2 & 3 filed appeals in the High 
Court. The High Court by the impugned judgment allowed the 
plaintiff's appeal and restored the decree of the trial Court for \/,rd 
share and dismissed the defendant's appeal. The High Court held that 
the 4th defendant was not legally married wife of deceased Gurappa. 
Hence this appeal by Defendants 2 & 3 by special leave. 
The question that was agitated before this Court was: Whether 
proof of custom of Udiki marriage was adduced by the fourth defen-
dant; and whether Udiki marriage itself implied the dissolution of 
earlier marriage and if not, whether separate custom of dissolution of 
the earlier marriage was pleaded and proved. 
Allowing the appeal, this Court, 
A 
B 
c 
HELD: Custom must be proved and the burden of proof is on the 
person who asserts it. A custom cannot be extended by logical process. 
D 
Customs cannot be extended by analogy and it cannot be established by 
a priori method. [SIB. El 
Nothing need be proved of which the Courts can take judicial 
notice. When a custom has been judicially recognised by the Court then 
it passes into the law of the land as proof of it becomes unnecessary 
E 
under section 57(1) of the Evidence Act. [81F) 
From the evidence on record, appreciated in the light of the case 
law on the subject and the authoritative texts relating to the custom of 
dissolution and Udiki form of marriage prevalent among the Lingayats 
who are a religious sect following teachings of Basava, the Court enter-
F 
tains no doubt that there has been ancient and unbroken customs of 
dissolution of marriage and of Serai Udiki marriage among the 
Panchamasal Lingayats which was judicially noticed by the Courts, and 
that the marriage in the instant case, of the fourth defendant with 
Gurulingappa was proved to have been customarily dissolved and that 
she was subsequently legally married with Gurappa in the valid cus-
G 
tomary form of Udiki marriage, whereafter, she lived with Gurappa as 
husband and wife until Gurappa died, and that, thereafter, she enjoyed 
the family pension by dint of her being nominated as wife of Gurappa to 
the knowledge of all concerned. She was accepted by the community as 

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