Dukku Labudu Bariki vs Sobha Hymavathi Devi And Ors. on 2 May, 2003

JUDGMENT

C.Y. Somayajulu, J.

1. In all these petitions the election of Smt. Hymavathi Devi, i.e., first respondent in all the three petitions, to the 28-S.T.-Srungavarapukota Assembly Constituency in Vizianagararn District during 1999 A.P. General Assembly Elections, reserved for a Scheduled Tribe candidate, is questioned. Petitioners in E.P.Nos. 25 and 26 of 1999 are the candidates that contested the election on the tickets issued by Anna Telugu Desam Party and Congress-I Party respectively, and petitioner in E.P.No. 27 of 1999 is one of the voters in the said Constituency.

2. The case of the petitioners, in all the three petitions, is that since first respondent is born to V. Murahari Rao, a Patnaik or Sistu Karnam by caste, which is a forward community, and his wife Simhachalam, belonging to Scheduled Tribe, she acquired the caste of her father, and so she is a Patnaik or Sistu Karanam by caste, and hence is not eligible to contest as a candidate from a constituency, which is reserved for a Scheduled Tribe candidate.

3. The case, in brief, of first respondent is that she is a resident of Bhimavaram Village of Anantagiri Mandal, a tribal village with a population of less than 300 persons and less than 50 houses. Her maternal grandfather Sobha Rama Raju, a Bhagatha by caste, married Mallammna and Gaviramma, who also belong to Bhagatha community, and begot her mother Simhachalam through Mallamma. Simhachalam was married to Ladda Appala Swamy, a Bhagatha, according to the tribal traditions, and after cohabitation, due to some differences with him, deserted him and returned to the house of her father Rama Raju. Vippalavalasa Murahari Rao, a Patnaik, who is a native of Vippalavalasa, married Kalavathi, daughter of his sister and Manmadha Rao of Uddangi Village. After being appointed as a teacher Murahari Rao was posted at Gujjili Village, which is about two kilometers from Bhimavaram. Thereafter he was transferred to Bhimavaram and was residing in the house of Sobha Rama Raju, At that time, he developed illicit intimacy with Simhachalam, and begot three daughters, including her (first respondent) and one son. There was no marriage between her mother Simhachalam and her father Murahari Rao. As such, their children were not accepted or treated by the members of Patnaik community either at Bhimavaram or any other place, and are being recognized and treated only as members of Bhagatha community. Murahari Rao never took his children born through Simhachalam to his native place, and whenever his relatives used to visit his house at Bhimavaram they used to cook their food separately, without accepting the food prepared by Simhachalam her mother. Kalavathi, after being persuaded by her husband Murahari Rao, joined him at Bhimavaram, but lived separately and was having a separate mess, and never ate the food cooked by Simhachalam or her family members. First respondent, who was born on 16.5.1969, was admitted in the school on 21.6.1971. Since Murahari Rao could not secure an alliance to her, either from his own community or from any non-tribal caste, her marriage was performed with her maternal uncle Appala Raju, an employee of Hindustan Shipyard at Visakhapatnam, on 23.3.1983, according to the tribal custom and rituals, when she was aged 13 years. After joining her husband at Visakhapatnam, she appeared for Matriculation and B.A. examinations as a private candidate and completed B.Ed., from Women’s College of Education at Rajahmundry, and was appointed as aided teacher in Visakhapatnam in a vacancy reserved for a tribal candidate, in 1996. After she was selected as Junior Assistant in the Andhra University in 1997 in a vacancy reserved to a Scheduled Tribe candidate, she resigned the post of teacher and joined as Junior Assistant in Andhra University. District Collector caused an enquiry regarding her status as a member of Scheduled Tribe and confirmed that she is a tribal woman. As she underwent all the ignominy and sufferings of a tribal woman and since the certificate issued by the Mandal Revenue Officer, Anantagiri Mandal under A.P. (Scheduled Tribes, Scheduled Castes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (1993 Act) also shows that she belongs to Bhagatha Community, her status as a tribal woman is unquestionable. Since none of the petitioners, nor any of the voters raised an objection regarding her status as a tribal woman at the time of scrutiny of her nomination, the petitions are not maintainable.

4. Second respondent in E.P. No. 25 of 1999, who is the petitioner in E.P No. 26 of 1999, filed his written statement supporting the case of the petitioner. Written statement of fourth respondent in E.P. No. 25 of 1999 cannot be taken into consideration because the same was filed into Court without seeking permission, in June, 2000 after the issues were settled on 10-4-2000.

5. Basing on the pleadings, the following issues were settled for trial:

1. Whether the first respondent belongs to Scheduled Tribe community ? or

2. Whether first respondent belongs to forward caste community ?

3. Whether the petitioner is estopped from raising the objection that first respondent does not belong to Scheduled Tribe community ?

4. Whether the result of the first respondent was declared without following the provisions contained in Sections 65 and 100 of Representation of Peoples Act ?

5. Whether the petition is not maintainable as contended by the first respondent?

6. To what relief?

Since the above issues can conveniently be recast, I recast them as follows:

1. Whether first respondent does not belong to Scheduled Tribe community and hence is not entitled to contest as a candidate from a Constituency resderved for a Scheduled Tribe candidate ?

2. To what relief ?

6. Since the three Election Petitions are in respect of the same election, as contemplated by Section 112 of the Representation of People Act, 1951 (the Act) they were clubbed and evidence was recorded in E.P. No. 25 of 1999.

7. On behalf of petitioners PWs.1 to 11 were examined and Exs.A1 to A6 were marked. On behalf of first respondent RWs.1 to 10 were examined and Exs.Bl to B35 were marked. Exs.X1 to X.32 were marked through witnesses.

8. PW1 is the petitioner in E.P. No. 25 of 1999. PW2 is the uncle of the first respondent. PW3 is a resident of Bhimavaram Village. PW4 is the petitioner in EP No. 26 of 1999. PW5 is a resident of Kothuru Village. PW6 is a resident of Jakkaravalasa, hamlet of Thokuru Village of Anantagiri Mandal. PW7 is the petitioner in EP No. 27 of 1999. PW8 is the Mandal Development Officer, Anantagiri Mandal. PW9 is the Registrar of Andhra University. PW10 is the Headmaster of Mandal Praja Parishad Elementary School at Bhimavaram. PW11 is the Mandal Revenue Officer, Anantagiri Mandal. RW1 is the first respondent. RW2 is Murahari Rao, the father of first respondent. RW3 is Sobha Appala Raju, the husband of first respondent. RW4 is Kalavathi, stepmother of first respondent. RW.5 is a native of Kothur, domiciled at Bhimavaram. RW 6 is a co-employee of RW3. RW7 is Simhachalam, the mother of the first respondent. RW8 is Nagabhushana Rao, the brother of RW4. RW9 is a resident of Bhimavaram. RW10 is Manmadha Rao, father of RW4.

9. The main contention of the learned Counsel for the petitioners is that as per Section 5(a), read with Section 100(1)(a) of the Act, if a seat is reserved for a Scheduled Tribe candidate, only a member belonging to the Scheduled Tribe can fill in such seat, and since Srungavarapu Kota Assembly seat, admittedly, is reserved for a Scheduled Tribe candidate, unless and until it is established that first respondent belongs to Scheduled Tribe, she is not eligible either to contest or can be declared elected to that seat from that constituency, and since first respondent, admittedly, is born to Simhachalam and Murahari Rao, who admittedly belongs to Patnaik community, which is a forward community, first respondent gets the caste of her father, but not that of her mother, and though she married a man from a Scheduled Tribe, since first; respondent failed to adduce evidence to show that she was accepted as a Scheduled Tribe woman, she cannot be treated as a Scheduled Tribe woman. Relying on Kumari Madhuri Patil v. Additional Commissioner, , where guidelines for issuance of caste certificates are laid down, and referring to the provisions of 1993 Act, he contended that certificate issued under 1993 Act can be made use of only for securing admissions into educational institutions and employment in Government institutions, etc., and the fact that a community certificate, showing that she is a Scheduled Tribe woman, is issued to the first respondent, does not prevent this Court from going into the status of first respondent as a Scheduled Tribe woman, more so because that certificate was issued without making any verification and without examining any documents, or school records. The learned Counsel relied on the following decisions: S.P.S. Balasubramanyam v. Surttayan, , Ranganath Parmeshwar Panditrao Mali v. Eknath Gajanan Kulkarni, , Valsamma Paul v. Cochin University, , D. Neelima v. Dean P.G. Studies, A.P. Agrl. University, Hyderabad, , Dr. T. Rajeswari v. Vice Chancellor-cum-Chairman, Sree Venkateswara University, , A. Prathyusha v. N.T.R University of Health Sciences, , Bikash Kumar v. Nanda Rani, , L Siddappa v. Chandappa, , Director of Tribal Welfare, Government of A.P. v. Laveti Giri, , and G. Sunilkumar v. Regional Joint Director of Technical Education, , in support of the contentions raised.

10. The contention of the learned Counsel for the first respondent is that since the evidence adduced by the first respondent shows that Murahari Rao (R.W.2) married Kalavathi (RW.4), the status of Simhachalam (RW.7) would be that a concubine of Murahari Rao but not that of his wife, more so because there is evidence on record to show that Simhachalam (RW7) married Ladda Appala Swami, and since there is nothing on record to show that the marriage between Ladda Appala Swami and Simhachalam (RW.7) was dissolved by a decree of divorce or otherwise, and since there is also no evidence on record to show that there, in fact, was a marriage between Murahari Rao (RW.2) and Simhachalam (RW.7). It is his contention that since there is no marriage between Murahari Rao and Simhachalam, i.e., RWs.2 and 7, Section 16 of Hindu Marriage Act also does not apply. Relying on Gurnam Kaur v. Puran Singh, , and Rajalakshmi v. Ramachandran, , it is contended that since first respondent is the illegitimate child of Murahari Rao and Simhachalam, first respondent would acquire the caste of here mother only but not that of her father. It is his contention that since PW1 hails from a village which is 50 Kms. away from Bhimavaram, he cannot have personal knowledge as to how the first respondent was being treated in Bhimavaram, and since PW1 admitted that PWs.2 and 3 belong to Congress Party, and since PW2 filed nomination as an independent candidate, the evidence of PWs.1 to 3 as to how first respondent was being treated cannot be believed or accepted. It is his contention that since no objection regarding the caste of first respondent was taken at the time of scrutiny of nominations, it is clear that PWs.1 and 4 i.e., petitioners in E.P. Nos. 25 and 26 of 1999, acquiesced the caste of first respondent as Bhagatha, and so they are estopped from contending that first respondent is not a Bhagata woman. He contended that since MLA is not an office of profit, and since first respondent is not claiming any benefit under Articles 15(4) and 16(4) of the Constitution, the contention to the petitioners, that the caste certificate issued under 1993 Act has no value, cannot be countenanced. He placed strong reliance on A.S. Sailaja v. Principal, Kurnool Medical College, , Valasamma Paul’s case (supra) Laveti Giri case (supra), N.E. Horo v. Jahan Ara, , Wilson Reade v. V.C.S. Booth, AIR 1958 Assam 128, Shri V.V. Giri v. Dippala Suri Dora and Ors., , W.S. V. Satyanarayana v. Director of Tribal Welfare, , Vidya G. Naik v. Syndicate Bank, 1999 (5) SLR 641, and Bindu v. State of Kerala, 1999 (7) SLR 198, in support of his various contentions.

Issue No. 1

11. Petitioner in E.P. No. 25 of 1999 admittedly was contesting and winning all the elections from 1983 to 1994 from Srungavarapukota Assembly Constituency, which is being reserved for Scheduled Tribe candidate. In fact para-3 of the written statement (Counter) filed by her, first respondent admitted that petitioner in E.P. No. 25 of 1999 was elected as a member of Assembly for four times. Significantly the statement of PW1 that he belongs to Valmiki Community, which admittedly is a Scheduled Tribe community, is not even challenged or disputed during his cross-examination. So it is clear that P.W.1 belongs to Scheduled Tribe. As far as the petitioner in E.P. No. 26 of 1999 is concerned, his caste is said to be the subject-matter of W.P. No. 18204 of 1993 in this Court. So, it cannot positively be said that petitioner in E.P.No. 26 of 1999 belongs to Scheduled Tribe community. The status of petitioner in E.P.No. 27 of 1999 is irrelevant because he is only a voter and since an elector, i.e., a person, entitled to vote at the election to which the election petition relates, can file an election petition as per Section 81 of the Act.

12. That her father belongs to Patnaik caste is not denied or disputed by the first respondent. It is her specific case that since there was no marriage between her father Murahari Rao and her mother Simhachalam, and in any event since the marriage of her father Murahari Rao with Kalavathi, who came into his life long prior to Simhachalam, is subsisting, and since the marriage of her mother Simhachalam with Ladda Appala Swamy is not dissolved, there can be no valid marriage between Murahari Rao and Simhachalam, and so she and her sisters and brothers born to Simhachalam and Murahari Rao are their illegitimate children, and so they acquired the caste of their mother Simhachalam, but not that of their father Murahari Rao, and since admittedly her mother Simhachalam is a member of Scheduled Tribe, she acquired the caste of their mother, i.e., Bhagata caste, which admittedly is a Scheduled Tribe community, and in any event since her husband Appala Raju admittedly is a Bhagatha by caste, after her marriage with Appala Raju she automatically acquired the caste of her husband, and so she is a Bhagatha by caste. Thus, the defence of first respondent is two fold, i.e., (i) she is a Bhagata by caste as she is the illegitimate daughter of her mother Simhachalam and (ii) since her husband Appala Raju (RW.3) is a Bhagata, she automatically became a Bhagata on her marriage with him.

13. At this stage I feel it relevant to consider the case law cited by the learned Counsel for both sides. The ratio in D. Neelima ‘s case (supra) is that irrespective of acceptance of the members of the caste a tribe, to which the husband belongs, on marriage a woman would acquire the caste or tribe of her husband, but such acquisition of caste does not enable her to claim reservation to posts specially reserved for Scheduled Tribes or Scheduled Castes. In the said decision V.V. Girt case (supra), relied on by the learned Counsel for the first respondent, was also considered. In S.P.S. Balasubramanyam case (supra) and Ranganath Parmeshwar Panditrao Mali case (supra) it was held that when a man and a woman live together for long years as husband and wife, a rebuttable presumption of legality of marriage between them would arise, and so the children born to them would be treated as their legitimate children. In Madhuri Patll case (supra) the Supreme Court, taking judicial notice of the practice in vogue, of parties obtaining certificates relating to their social status for seeking admissions into educational institutions by making false claim, laid down guidelines for issuance of caste or social status certificates. The ratio in Valasamma case (supra), relied on by the learned Counsel for both sides, is that if a woman, who does not belong to Scheduled Caste or Scheduled Tribe or OBC community, marries a person belonging to Scheduled Caste, Scheduled Tribe or OBC community, she would not ipso facto be entitled to claim reservation under Article 15(4)or Article 16(4) of the Constitution, unless she establishes that she had undergone the handicaps and was subjected to the disadvantages, disabilities, indignities or sufferings of that community. In P. Rajeswari case (supra), a learned Single Judge of this Court held that a person, who is not a Scheduled Tribe or Scheduled Caste by birth, will not be considered as a member of SC or ST merely because he/she married a person belonging to SC or ST, and that the spouse continues to retain the original status, and since our Society is a paternal society, the offsprings of such inter-caste marriages acquire the caste of their father for all purposes and the children will enjoy the privileges and discriminations that follow from the caste of their father but not that of their mother. In A. Pratyusha case (supra), in which the intendment of G.O. Ms. No. 371 dated 13.4.1976, conferring the benefit of reservation to the children of inter-caste marriages, was considered, a learned Single Judge of this Court, after reviewing the case law on the subject and taking into consideration Neelima case (supra), Valasamma case (supra) and Laveti Giri case (supra) held that the orders, i.e., the G.Os. issued by the State and Central Governments, have to be applied having regard to the tests laid down by the Supreme Court, and so a person born to a forward caste father and a Scheduled Caste mother, who earlier did not claim the benefits of Scheduled Caste category and who obtained a certificate issued without following the prescribed procedure, would not be entitled to the benefits of reservation as Scheduled Caste candidate. The learned Judge held that the underlying object of inter-caste marriages is to usher in a casteless society, but not to encourage the offsprings of such marriages to claim reservation under Articles 15(4) and 16(4) of the Constitution. Here I must state that I am unable to agree with the contention of the learned Counsel for first respondent that inasmuch as first respondent is not seeking admission into an educational institution, and is not being appointed to any ‘post’, Article 15(4) and Article 16(4) of the Constitution have no application to this case, because this is a case of election to legislative body. That ‘polities’ is a ‘profession’ is no longer res integra, because the Supreme Court way back in 1976 held that politics is a ‘profession’ or ‘occupation’. In para-10 of Commissioner of Expenditure-Tax v. P.V.G. Raju, 1976 (1) An. W.R. 16 (SC) it is held :

“It is thus clear, without reference to the wealth of case law relied on by the High Court, that politics has been a profession and, indeed, under modern conditions in India, perhaps the most popular and uninhibited occupation – with its perils, of course.”

Therefore, though all the earlier referred decisions are rendered with reference to Article 15(4) and Article 16(4) of Constitution, the ratio in the said decisions applies equally to seats reserved for Scheduled Tribe or Scheduled Caste candidates in an election to a legislative body also, because such reservation is a constitutional mandate as per Article 330 of the Constitution. A seat reserved for a Scheduled Tribe or a Scheduled Caste candidate, as per Section 5(a) of the Act (most probably enacted as per the Constitutional mandate in Article 330) can be filled in only a Scheduled Caste or Scheduled Tribe candidate. Like Section 5(a) of the Act, in case of educational institutions and public employment also, as per Article 15(4) and Article 16(4) of the Constitution, as held in the earlier referred decisions, the seats reserved for Scheduled Caste and Scheduled Tribes can be filled in only by such candidates, and if any person other than a Scheduled Caste or Scheduled Tribe candidate is admitted in those reserved seats, this Court can interdict or set at naught such admission. In G. Sunil Kumar, case (supra), it is held that a community certificate, which is not issued by the Mandal Revenue Officer exercising jurisdiction over the candidate’s village, cannot be taken cognizance of, and in Patriarchal family children would acquire the caste of their father.

14. In Vidya G. Naik, case (supra), relied on by the learned Counsel for the first respondent, a lady claiming herself to be belonging to Scheduled Tribe in view of her marriage with a person belonging to Scheduled Tribe, secured employment in a Public Sector Bank. The question was whether after marriage with a Scheduled Caste man she continues to belong to her original caste or would acquire the caste of her husband. A learned Single Judge of Calcutta High Court, after reviewing the case law, observing that there is a. conflict between N.E. Horo case (supra) and Valasamma Paul case (supra), held that since N.E. Horo case (supra) was holding sway when the petitioner in that case entered service, her appointment on the basis that she belongs to a Scheduled Caste community, cannot be said to be irregular. This decision, in a way, can be said to have taken the view that N.E. Horo case (supra) is no longer in vogue or became obsolete in view of Valasamma Paul case (supra). Therefore, N.E. Horo case (supra) is of no help to the first respondent. In Bindu case (supra) relied on by the learned Counsel for the first respondent, a Division Bench of Kerala High Court held that the offspring of a marriage between a Scheduled Caste mother and a forward caste father in. Kerala State should be treated as belonging to Scheduled Tribe caste or Scheduled Tribe community in view of the G.O. issued by the Kerala State Government, under which children born of inter-caste marriage have to be treated as belonging to Scheduled Caste or Scheduled Tribe community if either of the parents belongs to that community. The effect of a similar G.O. in force in Andhra Pradesh State, i.e., G.O. Ms. No. 371 dated 13.4.1976 was considered by this Court in A. Pratyusha case (supra) referred to in the earlier paragraph. In view of A. Pratyusha case (supra), which is decided by this Court, Bindu case (supra), decided by Kerala High Court, cannot be taken into consideration by me in view of the law of precedent.

15. In W.S.V. Satyanarayana case (supra), a Division Bench of this Court gave a direction to the Mandal Revenue Officer, the second respondent in that writ petition, to conduct an enquiry as to whether the appellant/petitioner in that case has been accepted by Konda Kapu community as a member of their tribe and then consider the question if he is entitled to issuance of a community certificate. Petitioner in that case, whose mother belongs to Scheduled Tribe community and whose father is not from Scheduled Tribe community, secured admission into M.B.A. course in Nagarjuna University as a member of Scheduled Tribe community. In my considered opinion, this decision is of no help to the first respondent, because the question as to whether a person born to a Scheduled Tribe woman and non-Scheduled Tribe father is entitled to claim reservation as a Scheduled Tribe candidate, as of right by virtue of G.O. Ms. No. 371 dated 13.4.1976 was not decided, but a direction was given to the Mandal Revenue Officer to find out if the petitioner was accepted as a member of the Scheduled Tribe community or not, for him to be entitled to get such a community certificate. If I may say so, the same view was taken in A. Pratyusha case (supra). If the ratio in the said decision is applied, the question as to whether first respondent is accepted, as a member of Bhagata Caste and suffered the same handicaps as Bhagata, would be relevant to find out her status.

16. In N.E. Horo case (supra) the question was whether a female, who did not belong to “Munda” community, which is a Scheduled Tribe community in Bihar State, would acquire the status of “Munda” consequent on her marriage with a man belonging to ‘Munda’ tribe. It was held that on marriage, if she is approved or sanctioned by the Panchayat, she becomes a member of that community. As stated earlier, since Supreme Court in Valasamma Paul case (supra) took a different view, as held in Vidya G. Naik case (supra) relied on by the learned Counsel for first respondent and referred to in para 14 above, N.E. Horo case (supra) should be taken to have become obsolete.

17. In L. Siddappa case (supra) the question was on whom would the burden of proof lay, to establish that a candidate declared elected in an election to a seat reserved for a Scheduled Tribe candidate does not belong to that caste. The Supreme Court held that it is for the election petitioner to establish that the returned candidate belongs to forward community, and if he were to establish that fact, it would necessarily mean that the declared candidate is not a member of Scheduled Tribe or Scheduled Caste community, for whose benefit the seat is reserved. The question in that case was whether the returned candidate was a “Nayaka”, or “Bedar”, a forward community. It was held that if evidence is adduced to show that the returned candidate is a “Bedar” that would prove that he is not a “Nayaka”, and that that fact can be established by adducing evidence to show the customs relating to marriage, births, deaths, worship, dress, occupation and the like, which distinguish a ‘Bedar’ from a ‘Nayaka’. In view of this decision it is clear that the burden of proof is on the petitioners to establish that first respondent belongs to Patnaik community, as contended by them.

18. In Wilson Reade case (supra) nomination of one of the candidates for a seat reserved for Scheduled Tribe candidate was rejected on the ground that he is not a member of Scheduled Tribe community. He questioned the said rejection by way of an election petition. The Election Tribunal (District Judge) dismissed the election petition. Appeal to the High Court was allowed holding that a member of a caste or tribe, outside the pale of that caste or tribe, can enter the pale of another caste or tribe, if that community recognizes his claim, and treat him as a member of their caste or tribe. This decision, decided way back in 1958 by Assam High Court, is not much of help for a decision in this case, because various decisions of the Supreme Court and this Court, on the issue relating to inter-caste marriages, referred to above, like Valasamma Paul case (supra), A. Pratyusha case (supra) and W.S.V. Satyanarayana case (supra) considered the said question and laid down the law that a person, who is not a tribal by birth in order to claim the benefit of reservation available to a tribal, by marriage or otherwise, has to establish that he or she had undergone the handicaps and was subjected to the disadvantages, disabilities, indignities or sufferings of a tribal. In V. V. Giri case (supra) it is held that the caste status of a person has to be determined in the light of the recognition received by him from the members of the caste into which he seeks entry, and unilateral acts of such person are not enough to establish his caste status.

19. Keeping in view the above position of law, the evidence adduced by the parties has to be considered.

20. The evidence of PW1, petitioner in EP No. 25 of 1999, is that first respondent does not belong to Scheduled Tribe community and that he sent the original Exs-A1 and A2 representations to the Election Commissioner and Chief Justice of India. During cross-examination he stated that he was elected as MLA from the same constituency, which is being reserved for a Scheduled Tribe candidate, in all the elections held from 1983 to 1994, on T.D.P. ticket, and as he was not given T.D.P. ticket during 1999 elections he resigned from T.D.P. and joined Anna T.D.P., and at the time of scrutiny he gave a written representation to the Returning Officer questioning the caste of the first respondent, but the Returning Officer refused to receive the same and that he sent a complaint by post to the Election Commissioner about the improper rejection of his objection by the Returning Officer. He admitted that Simhachalam, mother of the first respondent, is a Bhagatha by caste, and that Bhagatha caste is a Scheduled Tribe, and asserted that the father of the first respondent, who hails from Vippalavalasa, being a teacher, might have written the caste of the first respondent as Bhagatha in the school register, and denied the suggestion that all villagers in Bhimavaram are treating the first respondent as a tribal.

21. P.W.2, a resident of Bhimavaram Village, is a cousin of Simhachalam, mother of first respondent. His evidence is that he was the Sarpanch of Gummakota Gram Panchayat and was the Village Munsif (Village Officer) of Bhimavaram Village, and that Murahari Rao, who belongs to Sistu Karnam (Patnaik) community, married Simhachalam and brought up the children through her as Patnaiks, and that none of Bhagatha community people recognized first respondent as member of their community. During cross-examination he denied the suggestion that there is animosity between him and the first respondent and that Simhachalam married Ladda Appala Swami, and that Murahari Rao married Kalavathi, daughter of Manmadha Rao, a resident of Uddangi. He admitted that a woman by name Kalavathi is a voter in his village, and that the names of Murahari Rao, Kalavathi and Simhachalam are found in the voters list as residents of house No. 2/3 of Bhimavaram Village, and that by the time Murahari Rao came to the village, Simhachalam was residing with her father; and that Simhachalam and Murahari Rao begot five children. He denied the suggestion that Murahari Rao stopped sending first respondent school after she finished 5th standard, because she is his illegitimate child, and asserted that Murahari Rao took first respondent to Visakhapatnam and admitted her in a residential school and got her educated there. He denied the suggestion that Murahari Rao dismantled the thatched house of Rama Raju and constructed a pucca house, and asserted that Rama Raju’s house is still in existence and Murahari Rao constructed a separate house, and that the marriage of the first respondent was permormed according to Patnaik community customs. He admitted that the family of the first respondent supported his candidature during the elections to Gram Panchayat.

22. The evidence of PW3, a resident of Bhimavaram and Pydi by caste, is that first respondent was brought up by her father as per caste customs of Patnaiks. During cross-examination he denied the suggestion that Rama Raju and Murahari Rao were living in the same house and that first respondent (wrongly typed as ‘petitioner’ in the deposition) was born in the house of Rama Raju. He asserted that first respondent was born in the house of Murahari Rao. He stated that a Bhagathas and Patnaiks do not permit or allow Pydi community people to enter into their houses, he cannot say that happenings in the houses of Patnaiks and Bhagathas.

23. The evidence of PW4, petitioner in EP No. 26 of 1999, is that he belongs to Valmiki community, which is a Scheduled Tribe community, and that Murahari Rao, the father of the first respondent, hails from Vippalavalasa Village and belongs to Patnaik caste, and worked as a Teacher at Bhimavaram and had married Simhachalam, and as President of Anantagiri Mandal Praja Parishad, he is acquainted with Murahari Rao intimately, and that the marriage of first respondent with Appala Raju was performed as per Patnaik community customs and rites, by a Patnaik priest. He produced Ex.A4, registration extract of a sale deed executed in favour of Simhachalam, describing her as the wife of Murahari Rao (RW.2), and Ex.A5, a copy of Adangal describing. Simhachalam as Vippalavalasa Simhachalam. During cross-examination he denied that Ex.X1 (original of Ex.A3) is fabricated for the purpose of this case, and admitted that he contested the elections in 1994 and 1999 as a Congress Party candidate from Srungavarapukota constituency and asserted that he attended the marriage of first respondent with Appala Raju but did not observe if the bridegroom was mounted on a horse and was taken round in the village in a procession. He denied the suggestion that the entire village was treating the first respondent and her sister Sarojini as Bhagathas, and asserted that they are being treated as Patnaiks only. For a question put to him during cross-examination, reading:

Q. Since Murahari Rao did not beget children through Kalavathi, he fostered first respondent and Sarojini as his daughters. What do you say?

he answered as follows:

A: Murahari Rao married Simhachalam and begot first respondent and Sarojini.

The above question put to P.W.4 in cross-examination on behalf of first respondent if at all shows that first respondent was wavering and is unable to make up her mind as to what defence she should take in these petitions.

24. PW5 was the Surpanch of Potturu Gram Panchayat from 1962 to 1981. His evidence is that he knows Murahari Rao and Simhachalam since 40 years, and that he attended their marriage, and that Murahari Rao brought up the children begotten through Simhachalam and performed the marriage of first respondent with Appala Raju (RW.3) as per Patnaik caste customs. During cross-examination he denied the suggestion that Murahari Rao begot children through Simhachalam without undergoing the ceremony of a marriage, and asserted that in Girijan communities at the time of marriage bridegroom would be taken on the shoulders of individuals only, but not on horseback.

25. The evidence of PW6, a resident of Jakaravalasa, hamlet of Thokur, is that Murahari Rao and Simhachalam are husband and wife and are being treated as such and live in the same house with their children, and that Murahari Rao brought up all his children, including the first respondent, as Patnaiks, and that Simhachalam possesses properties, and Murahari Rao performed the marriage of first respondent as per Patnaik caste custom. During cross-examination he stated that he does not know if a person by name Kalavathi ever lived in the house of Rama Raju, and that he does not know if there was a marriage between Murahari Rao and Kalavathi.

26. The evidence of PW7, petitioner in E.P. No. 27 of 1999, is that Murahari Rao, a Patnaik by caste, married Simhachalam, a tribal. During cross-examination he denied the suggestion that first respondent was brought up as a Bhagata. He also denied the suggestion that he filed the E.P. at the instance of, and on being financed by, other persons.

27. Mandal Development Officer of Anantagiri Mandal, who was summoned to produce the Service Register of Murahari Rao, i.e., Ex.X2, was examined as PW8. Ex.X3, a sheet in Ex.X2, also was marked through him. During cross-examination he stated that entries in the Service Register and the Family Benefit Card would be made on the information given by the employee, without making enquiries about the truth and correctness of the relationship mentioned.

28. Registrar of Andhra University was examined as PW9 and Exs.X4 to X7 were marked through him. During cross-examination on behalf of first respondent, Exs.X8 and X9 were marked through him.

29. Headmaster of Mandal Parishad Elementary School, Bhimavaram Village was examined as PW10 and Exs.X10 to XI3 were marked through him. During cross-examination on behalf of first respondent Exs.X14 to X24 were marked through him.

30. Mandal Revenue Officer, Anantagiri Mandal was examined as PW11. Exs.X25 to X31 were marked through him.

31. The evidence of RW1, first respondent, is that her maternal grandfather Rama Raju is a Bhagata, a tribal caste, from Bhimavaram Village, and has two wives, Mallamma and Guramma, and that her mother Simhachalam was born to Mallamma, and was married to Appala Swamy son of Ladda Darappa, and that her mother deserted Appala Swamy and returned to her parents house. Her father Murahari Rao, on his appointment as a teacher and posting at Bhimavaram, could not get accommodation, and so her grandfather Rama Raju permitted him to stay in a room in his house, and since Kalavathi, wife of Murahari Rao, did not join him at Bhimavaram, her father Murahari Rao developed intimacy with her mother Simhachalam, who did not obtain divorce from her husband Appala Swamy, and out of that illicit intimacy with Simhachalam, she, her two sisters and two brothers were born to Murahari Rao, and that Murahari Rao did not beget any children through Kalavathi and that she and her sisters and brother are all being treated as Bhagathas but not as Patnaiks, and that she follows the traditions and customs of Bhagathas but not of Patnaiks, and that Patnaiks and Pydies in Bhimavaram never treated her, her brothers and sisters as Patnaiks, and since she is being treated, as a Bhagatha, nobody from Patnaik community came forward to marry her, and so her grandfather got her married to his son Appala Raju on 23-3-1983 when she was 13 years of age, according to Bhagatha custom and after her marriage, her husband took her to Visakhapatnam and made her to appear for Matriculation from Andhra University, and that she passed Matriculation in 1987, and became a Graduate in 1993, and passed B.Ed. in 1995 from Rajahmundry, after studying in a college in a seat reserved for Scheduled Tribe candidates, and worked as Teacher for three months and was later appointed as Junior Assistant in the Andhra University in a post reserved for Scheduled Tribe candidate, and that Bhagatha marriages will be performed for three days, that on the first day the bridegroom’s party goes to the house of the father of the bride and would present a goat, rice, whereupon betrothal ceremony takes place, and after betrothal ceremony the bridegroom party would take the bride and her people to the ‘Vididi’ (lodging house of the bridegroom’s party), where ‘Kankanams’ would be tied to both the bride and bridegroom, and both of them would be bathed in water mixed with turmeric powder, and that on the second day the feet of the bridegroom would be wetted with the blood of a got, which is sacrificed near the marriage pendal, and would be presented with a pair of wooden slippers and would be mounted on a horse and would be taken in a procession around the village with the bride following him in a ‘Chapta’ or a ‘Pallaki’, and on the same day they would offer ‘Pasupu Kunkuma’ to the bride’s family deity, and thereafter the bridegroom would be brought to the pendal to tie ‘Tali’ to the bride, and that no priest officiates a Bhagata marriage, and ‘Dhoom Bajas’ and non-vegetarian food, both during lunch and dinner on all the three days, are a must in Bhagata marriages, and that the ‘Kankanams’ tied to the bride and bridegroom on the first day would be untied on the third day, and the bride would be sent with the bridegroom on the third day, and thereafter bridegroom’s party would host a feast, but in Patnaik weddings, where there would be an officiating priest, bridegroom would not be taken in a procession and no non-vegetarian food would be served and there would be no animal sacrifice or ‘Dhoom Bajas’. According to her ‘Itukala Panduga’, where ‘Dhimsa Dance’ would be performed by Bhagata ladies, which would be observed for five days, starting with the full moon day of Ugadi month, is the most important festival of Bhagathas. She further stated that her sister Sarojini was married in 1993 and that after Vasantha, her another sister, passed V Class at Bhimavaram, her husband took Vasantha also to Vizag and admitted her in a school where she studied up to X Class and that Vasantha is yet to be married, and that her younger brother Ramakrishna studied upto V Class at Bhimavaram and later prosecuted his studies at Visakhapatnam staying in her house, and that Kalavathi, wife of Murahari Rao, has been staying in the house of her grandfather Rama Raju along with Murahari Rao. During cross-examination she stated that she has no evidence to show that there was a marriage between Simhachalam and Ladda Appala Swamy. She admitted that Murahari Rao described Simhachalam as his wife in Ex.X.2, and that in Ex.X.29 (her first application seeking caste certificate) she did not mention that her parents belong to different castes or communities, and that the Sarpanch who gave the certificate enclosed to Ex.X.29 is her close relative, and that she appeared for Matriculation examination for the first time in 1985, and that the distance between Gujjali, Bhimavaram and Gummakota Villages, which arc interior Girijan villages, would be about 1 1/2 to 3 kilometers, and that the schools at all those three places are single teacher schools. She stated that her name does not find place in the voters’ list of Bhimavaram Village, but finds place in the voters’ list of Visakhapatnam, because by the time she became eligible to vote she was residing at Visakhapatnam. She further stated that Srungavarapukota, Jami and Vepada Mandals, situated in Srungavarapukota Assembly Constituency, are in Vizianagaram District, and that 99% voters in those Mandals are non-tribals, and that there are about 1,40,000 voters in Srungavarapukota Assembly Constituency, that her husband is a Supervisor in Hindustan Shipyard with handsome salary. She stated that Kalavathi is not found in any of the photographs of Ex.B11 negative roll taken at the time of her marriage, and that the marriage pendal is not found in any of the photographs.

32. The evidence of Murahari Rao, father of first respondent, who is examined as R.W.2, is that after his appointment as a teacher, he was posted at Gujjali and was later transferred to Bhimavaram during November, 1965 and at that time he sent his wife Kalavathi to his in-laws house to assist his father-in-law, who lost his wife, and hence was living alone at Bhimavaram in the house of Sobha Rama Raju, and at that time he developed intimacy with Simhachalam and begot six children through her, and that in the meanwhile Kalavathi joined and started living with him and Simhachalam in the same house separately, and that Patnaiks at Bhimavaram, and all his relatives have been treating his children as tribal children as they are born to Simhachalam, a Bhagata woman, and since all his efforts to get the first respondent married to a man from Patnaik caste proved futile, he gave her in marriage to his brother-in-law, and that he nominated Simhachalam, but not Kalavathi, as the person entitled to receive the retrial-cum-death benefits since Simhachalam has children. During cross-examination he admitted that he has no document to show his marriage with Kalavathi, and that the entry in Ex.X.10, which described the first respondent as a resident of Vippalavalasa, is true and correct, and that two, out of the three ladies, found in Ex.B.9 photograph have the ‘Pallav’ of the saree on their right shoulders, and the first respondent (RW.1) has the ‘Pallav’ of her saree on her left shoulder, because she developed such habit while studying at Visakhapatnam, a city. He admitted that in none of the photographs produced by her first respondent is seen wearing the pallav of her sari on her right shoulder. During re-examination he stated that the date of birth and caste mentioned of the first respondent at S.No. 62 of Ex.X.10, are incorrect.

33. The evidence of Appala Raju, husband of first respondent, who is examined as R.W.3, is that his sister Simhachalam and Murahari Rao lived together without marriage and begot six children and that two of their children passed away, and that Patnaik families in Bhimavaram never recognized or treated the children of Simhachalam and Murahari Rao as their caste men but have been treating them only as Bhagathas, and so they never invited the children of Simhachalam and Murahari Rao to their houses on auspicious occasions, and since Murahari Rao could not succeed in getting a boy from Patnaik community to marry the first respondent, he married her and took her with him to Visakhapatnam and made her appear for Matriculation and Degree examinations, and that she studied B.Ed., at Rajahmundry. During cross-examination he denied the suggestion that his marriage with first respondent was not performed as per Bhagatha custom and was performed as per Patnaik custom only, and asserted that there was no priest in his marriage, and admitted that the entry at S.No. 24 of Ex.X.10 relates to him and that he does not know if the date of birth recorded therein is true or not, and that he cannot say the reasons for Murahari Rao staying in their house without staying in Patnaiks’ houses in the village. He admitted that in tribal marriages, there will be a Guru, who is a caste elder, and fixes the time for and performs Bhagatha marriages.

34. The evidence of Katavathi (RW.4) is that she was married to Murahari Rao, younger brother of her mother, when he was undergoing teacher training course, and after completion of his training as teacher Murahari Rao was posted at Gujjali, and so she and Murahari Rao lived at Gujjali, and after the death of her mother, her father took her to assist him, and so she could not accompany Murahari Rao to Bhimavaram on his transfer to that village from Guijali, and stayed with her father for three years and thereafter only after Murahari Rao took her to Bhimavaram, she came to know that Murahari Rao developed intimacy with Simhachalam, without marrying her, and that Patnaik families in Bhimavaram do not invite Simhachalam and her children to their family functions, though she gets invitation to such functions. During cross-examination she admitted that she is known as Kalavathi, daughter of Manmadha Rao, and that the marriage between first respondent and Appala Raju took place because they liked each other. While recording her evidence I observed and recorded in her deposition that she appears to be a very innocent and not worldly-wise. When I asked her to state the year of her marriage, she replied that her marriage took place in 1922.

35. The evidence of RW.5, a native of Kothuru, domiciled at Bhimavaram, is that Simhachalam, who was married to Ladda Appala Swamy, did not either join or go to her husband’s place and did not live with him as his wife, and that Murahari Rao developed intimacy with Simhachalam and begot six children through her, and that the children of Simhachalam are being treated as Bhagathas. During cross-examination he admitted that he is closely related to Sobha families at Bhimavaram, and stated that he does not know as to what used to happen, in his childhood, if a man from plains came to Agency area and developed intimacy with a tribal woman, as no man from plains developed illicit intimacy with a tribal woman in their village after he attained the age of discretion. He admitted that first respondent is popularly known as “Karnamgari Papa” (daughter of Karanam).

36. RW.6 is a friend of RW3. He is examined to state that he took photographs at the time of marriage of RWs.1 and 3. Exs.B6 to B.11 photographs and negatives were marked through him.

37. Simhachalam, mother of first respondent, was examined as RW7. Her evidence is that though she was married to her maternal uncle Ladda Appala Swamy, when she was aged eight years, but did not lead conjugal life with him, and developed intimacy with Murahari Rao while he was staying in their house, and begot children without marrying him, and that all her children are brought up as Bhagathas only but not as Patnaiks, and that Patnaiks in the village do not invite her or her children to the functions in their houses, and that all the releatives of Murahari Rao, when they visit Bhimavaram, eat the food prepared by Kalavathi only. During cross-examination she admitted that PW5 is her maternal uncle and is a very big landlord, and denied the suggestion that she and Murahari Rao were married as per Patnaik custom, and that PW5 also attended that wedding. She also admitted that in Sobha family all male persons will have suffix ‘Raju’ to their name and that her two sons do not have the ‘Raju’ suffix. She also admitted that Kalavathi is the daughter of the sister of Murahari Rao.

38. The evidence of Nagabhushana Rao, brother of Kalavathi, who was examined as RW8, is that after his sister Kalavathi and her husband Murahari Rao lived together for sometime at Gujjali, after Murahari Rao was posted at Gujjali as a Teacher, and after the death of his mother, Kalavathi came to assist his father and thereafter Murahari Rao was transferred to Bhimavaram and since Kalavathi did not join Murahari Rao, Murahari Rao developed intimacy with Simhachalam and begot children. During cross-examination he admitted that neither he nor her father gave or provided any property to Kalavathi, who is recognized only as the daughter of Manmadha Rao, for her maintenance.

39. Ammajamma, a Patnaik from Bhimavaram Village, was examined as RW9. Her evidence is that Murahari Rao, who was married to Kalavathi, developed intimacy with Simhachalam of her village and begot children through her, and that Simhachalam and her children are not recognized or treated as Patnaiks in Bhimavaram. During cross-examination she stated that Murahari Rao is not related to her, and that after he came to Bhimavaram as a teacher only she came to know of Murahari Rao, and that she does not know when the marriage between Kalavathi and Murahari Rao took place. She admitted that Simhachalam is the wife of Murahari Rao, During re-examination she stated that Kalavathi is the first wife and Simhachalam is the second wife of Murahari Rao and later stated that Simhachalam is the mistress of Murahari Rao.

40. Manmadha Rao, father of Kalavathi, is examined as RW10. His evidence is that when Murahari Rao, who married his daughter Kalavathi, was posted at Gujjali as a teacher, Kalavathi joined him at Gujjali and came back to assist him after the death of his wife, and after a considerable lapse of time, he took Kalavathi to Bhimavaram where she mingled with Bhagathas, and lived with Simhachalam and Murahari Rao and that whenever he goes to Bhimavaram, he takes provisions from his daughter and cooks separately, and that he never invited Simhachalam and her children to the functions in his house. During cross-examination he admitted that Ammajamma (RW.9) is his “Vadina” (sister-in-law), and that he does not know if there was a marriage between Simhachalam and Murahari Rao.

Point for consideration:

41. Since petitioners are questioning the election of first respondent on the ground that she does not belong to Scheduled Tribe community, as held by the Supreme Court in L. Siddappa case (supra), the burden of proof is on them to establish that first respondent does not belong to Scheduled Tribe. To put it conversely, petitioners have to establish that first respondent is a Patnaik, which admittedly is a forward caste community. If the petitioners are able to establish that the first respondent belongs to Patnaik community, it necessarily means and follows that first respondent does not belong to Scheduled Tribe community.

42. That Murahari Rao is the father of the first respondent is an admitted fact. Murahari Rao admittedly belongs to ‘Patnaik’ community. The decisions relied on by the Counsel for both sides lay down that the children born to parents of an inter-caste, or inter-religious marriage, would acquire the caste or religion of the father, but not that of the mother, and illegitimate children would acquire the caste or religion of their mother. Since the specific case of the petitioners is that Murahari Rao married Simhachalam and begot children, including first respondent, out of that wedlock, they have to establish that fact. Though first respondent admitted that she, her sister and brother are sired by Murahari Rao, her case is since there was no marriage between Murahari Rao and Simhachalam, and since Simhachalam was earlier wedded to Ladda Appala Swamy and since Murahari Rao married Kalavathi, the progeny of Murahari Rao through Simhachalam is but illegitimate
and so she, her sisters and brother, being the illegitimate children of her mother Simhachalam., automatically acquire the caste of their mother Simhachalam, i.e., Bhagata caste, which admittedly is a Scheduled Tribe community.

43. The evidence of PW.2, a cousin of Simhachalam, swore to the fact that there was marriage between Murahari Rao and Simhachalam. P.W.4 also swore to the fact that there was marriage between Murahari Rao and Simhachalam. The evidence of PW.5, maternal uncle of Simhachalam, is that Murahari Rao married Simhachalam and that he attended that marriage. Simhachalam, as RW.7, admitted that PW.5 is her maternal uncle and is a very big landlord. Therefore, there is no reason to disbelieve the evidence of PW.5 about the marriage between Murahari Rao and Simhachalam. PW.6 also stated that Murahari Rao and Simhachalam are being treated as husband and wife and live in the same house with their children. P.W.7 also swore to the fact that there was marriage between Murahari Rao and Simhachalam. The evidence of other PWs may not be very relevant to decide the question whether there was marriage between Murahari Rao and Simhachalam. Apart from the above oral evidence, there is documentary evidence on record to show that Simhachalam is the wife of Murahari Rao, in the shape of Exs.X.2, X.3 and Ex.A.4, A.5 and A.6. In Ex.X.3 A.P. Family Benefit Fund Employees Contribution Card, which is a part of Ex.X.2 – Service Register of Murahari Rao, Murahari Rao described Simhachalam as his wife. Column No. 7 of Ex.X.3 relating to “name of the nominee and relationship with employee” was filled in as “V. Simhachalam – Wife”. The endorsement at page-16 of Volume-1 of Ex.X.2 Service Register also shows ‘Nominated V. Simhachalam (Wife) under FBF scheme’. The said endorsement was signed by the Extension Officer. In the ‘Nomination for benefits under A.P. State Employees Group Insurance Scheme, 1964’, dated 25.8.1985 also, which is available in Ex.X.2, Murahari Rao nominated Simhachalam, describing her as his wife, to receive the Insurance amount in case of his death before retirement. Judicial notice can be taken that a woman, after her marriage, sheds the surname of her father’s family and takes up the surname of her husband’s family. The surname of the father of Simhachalam is ‘Sobha’. If Simhachalam was not married to Murahari Rao, her name would be ‘S. Simhachalam’ but not ‘V Simhachalam’. The explanation offered by Murahari Rao for nominating Simhachalam, but not Kalavathi, is but a lame explanation in an attempt to wriggle out the admission made by him in 1975 in Ex.X.3, when he was aged about 35 years. If Kalavathi is really the wife of Murahari Rao, she must be much younger to him, and it cannot be said that even at that time he knew that Kalavathi is either impotent or incapable of conceiving. If there was no marriage with Simhachalam, Murahari Rao would not have described Simhachalam as ‘V. Simhachalam’ and as his wife. Without marriage, she would be ‘S. Simhachalam’. It is well known that only a member of the family, but not an outsider, can be nominated to receive the retrial, etc., benefits of a Government servant. So, it has to be taken that Murahari Rao nominated Simhachalam in Ex.X.3 only because she is his wife. That fact impliedly establishes that there was no marriage between Murahari Rao and Kalavathi. Since marking of Exs.A.4, A.5 and A.6 was objected during the examination of PW.4, they were marked subject to objection being considered at the time of arguments. But, for reasons best known to the Counsel for first respondent, no arguments were addressed on the question of admissibility of Exs.A.4, A.5 and A.6. Exs.A.5 and A.6, being copies of Adangal, which is a public document, need no further proof, and can be admitted in evidence and can be taken into consideration. Very significantly neither Murahari Rao (RW.2) nor Simhachalam (RW.7) denied Ex.A4. They did not even state that the property covered by the original of Ex.A4 was not purchased by Simhachalam. So, it has to be taken that Simhachalam purchased the property covered by the original of Ex.A4. No doubt, neither Murahari Rao nor Simhachalam was cross-examined with reference to Ex. A4. It is well known that when a party to a proceeding examines a witness, who is in a position either to support his case or demolish the case of the other side, he has to elicit those facts in the chief-examination of such witness, and no inference can be drawn against the opposite side for not cross-examining the witness with respect to facts not spoken to by him in his chief-examination. (See Bhai Panna Singh v. Lachmi Prasad Narain Singh, 57 Mad. Law Journal 323 and 324 (PC). In Ex.A4, which is a registration extract of the sale deed dated 26-6-1980 also Simhachalam is described as ‘Vippalavalasa Simhachalam, wife of Murahari Rao’. The stamps for Ex.A4 also were purchased describing Simhachalam as the wife of Murahari Rao. In Exs.A5 and A6, certified copies of Adangals, Simhachalam is described as the wife of Murahari Rao. Recitals in documents, that too registered documents, decades anterior to the commencement of lis, are very important and vital. By the date of Ex.X.3 and Ex.A.4 Murahari Rao and Simhachalam would not have contemplated that their daughter would contest an election and her caste would be a subject-matter of dispute. So, they naturally must have stated in the documents, to which they are parties, true facts. It is very well known that documentary evidence prevails over oral evidence, that too of the parties interested in the result of the lis. The description of Simhachalam in Ex.X3 and Group Insurance Scheme Form in Ex.X2 by Murahari Rao himself, and also in Exs.A4 to A6, which are decades prior to the holding of 1999 elections, are ‘Res Ipsa Loquitor’. They begot six children and are being treated as wife and husband by the community. So, there can be little doubt that Simhachalam is the legally wedded wife of Murahari Rao. In fact RW9, who according to RW10 (Manmadha Rao) is his sister-in-law, unwittingly admitted that Simhachalam is the wife of Murahari Rao. Her explanation is re-examination is of little help to get over the said admission. Simhachalam, as RW.7, admitted that her sons do not have the suffix ‘Raju’, though all Sobha people have such a suffix. That fact also shows that children of Simhachalam are not being treated as Bhagatas.

44. A close and careful scrutiny of the evidence adduced by the first respondent shows that all her witnesses are related either to her or to her father Murahari Rao or are their close friends or associates. No independent and uninterested witness is examined to show that there was a marriage between Simhachalam and Ladda Appala Swami or as to how the children of Murahari Rao and Simhachalam are being treated by them. The year in which their alleged marriage took place is also not known and is not stated by any witnesses. Even as per the evidence of Simhachalam her marriage with Ladda Appala Swami, her maternal uncle, took place when she was about eight years of age and that she did not lead conjugal life with him and did not even go to his house. The evidence of RW1 regarding the marriage of Simhachalam and Appala Swami is but hearsay evidence since she can have no personal knowledge about that marriage. Since Simhachalam and Appala Swami admittedly are tribals, even assuming that they were married subsequent to the coming into force of Hindu Marriage Act, 1955, the provisions of that Act do not govern their alleged marriage in view of Section 2(2) of the said Act, which reads :

“Notwithstanding anything contained in Sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of Clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.”

and since no notification of the Central Government, applying the provisions of the Act to the Bhagatha tribe, is brought to my notice. So prima facie the alleged marriage between Appala Swami and Simhachalam is not governed by the provisions of Hindu Marriage Act. Even assuming that Hindu Marriage Act, 1955 applies to their marriage, by virtue of Section 29(2) of the Hindu Marriage Act, customary divorces in respect of marriage that took place either before or after the commencement of that Act are saved, Court can take judicial notice that there is customary divorce among tribals. In that regard I wish to extract a passage from the book “MADAGADA – A Tribal Village in Araku Valley” published by Tribal Cultural Research and Training Institute of Tribal Welfare Department of Andhra Pradesh in 1968, at pages 68 and 69 relating to customary divorce. It reads:

“Divorce is socially permitted among all the tribals and Kummari caste people………… It is very easy to get divorce among the tribal communities and Kummari caste people as divorce is socially approved. If a woman leaves her husband and elopes with another man, the second husband would return the marriage expenses and bride-price incurred to the former husband. The children born to her through the former husband are left to the guardianship of their biological father. If the woman is pregnant at the time of separation, the new born child should be restored to her former husband. Even when the woman escapes to her parental home without marrying anybody, the parents should pay back marriage expenses and the bride-price to her divorced husband.”

It is also useful to refer the topic “DIVORCE” at page-6 in the article “Bagatas of Andhra Pradesh” written by Dr. K. Mohan Rao, Director, Tribal Cultural Research and Training Institute, Tribal Welfare Department, Government of A.P., Hyderabad, published in the Magazine “Girijan Samskriti” printed by Tribal Cultural Research and Training Institute. It reads:

“The divorce is socially accepted in Bagata Tribe.”

45. Since Simhachalam herself stated that she never led conjugal life with Ladda Appala Swamy and that she did not even go to his house, even assuming that there was a marriage between Ladda Appala Swamy and Simhachalam, it can easily be inferred that there was a customary divorce between Ladda Appala Swamy and Simhachalam, and that must be the reason for her continuous stay in her parents house. So, the alleged marriage between Ladda Appala Swamy and Simhachalam would not be a bar for Murahari Rao marrying Simhachalam.

46. The other point to be considered is whether there was marriage between Murahari Rao and Kalavathi, if so when that marriage took place? Significantly the written statement of the first respondent is silent about the date or year of marriage of Murahari Rao with Kalavathi. None of the witnesses examined by the first respondent stated about the date or year of the marriage between Kalavathi and Murahari Rao. Except the interested oral testimony of Murahari Rao (RW.2), Kalavathi (RW.4), Nagabhushana Rao and Manmadha Rao, i.e., the brother and father of Kalavathi, who are examined as RWs.8 and 10, no independent witness is examined to show that Kalavathi is the wife of Murahari Rao, or that they attended that marriage and saw them living as husband and wife. R.W.9 cannot be said to be an independent witness, because Manmadha Rao (R.W.10) admitted that she is his sister-in-law. RWs.1, 3, 5 to 7 cannot have personal knowledge of the marriage between Murahari Rao and Kalavathi, because they, admittedly, were strangers to them at that time. Murahari Rao admittedly went to Bhimavaram only after being appointed as a teacher. According to first respondent his marriage with Kalavathi took place even prior to his appointment as teacher. If really there was marriage between Kalavathi and Murahari Rao, there should be some documentary evidence in support thereof, like wedding invitations, photographs, letters or documents describing Kalavathi as the wife of Murahari Rao. Interestingly Murahari Rao himself admitted that there is no documentary evidence to show that Kalavathi is his wife. Kalavathi, admittedly, is the sister’s daughter of Murahari Rao. While recording her evidence I made a note in the deposition of Kalavathi (RW.4), that she is innocent and does not appear to be worldly wise. For a question put by me as to the year in which her marriage took place, she replied as 1922. By 1922 neither she nor Murahari Rao was born, as she is younger to Murahari Rao, and the Service Register of Murahari Rao, i.e., Ex.X.2, shows his date of birth as 10.6.1942 and was appointed as teacher, under proceedings dated 21.10.1965. The evidence of Murahari Rao, Kalavathi, Nagabhushana Rao and Manmadha Rao is that Kalavathi, after the death of her mother, went to her father’s house to assist him and so Murahari Rao lived all alone for a considerably long time. Even as per the evidence adduced by first respondent, Murahari Rao was staying away from his other family members. So, he also was not having female assistance when Kalavathi left him. In normal course of human conduct, a young married woman and even a very considerate daughter would not stay away from her lone husband for years together leaving him to his fate only to help her father in his household affairs. May be a woman, who is unfit for conjugal life, does so, to enable her young husband to satiate his sexual and other needs elsewhere. If really Kalavathi was married to Murahari Rao, it is also difficult to believe that for several years Kalavathi and Manmadha Rao did not know that Murahari Rao was living with Simhachalam and begot children. Their ignorance also is a pointer to show that there was no marriage between Kalavathi and Murahari Rao. In fact, both Kalavathi and Nagabhushana Rao admitted that Kalavathi is known only as the daughter of Manmadha Rao. Significantly in Exs.B,32 and B.33, voters’ lists of Bhimavaram Village, prepared in 1995 and 1999, also Kalavathi, is described as the daughter of Manmadha Rao, but not as the wife of Murahari Rao. It is well known that a married woman would be described as the wife of a named individual, but not as the daughter of a named individual in a voters’ list, that too when the husband is living in the same house with her. If there was a marriage between Murahari Rao and Kalavathi., and when they are living in the same house, there is no earthly reason for describing Kalavathi as daughter of Manmadha Rao in Exs. B.32 and B.33. It is also not the case of Murahari Rao or first respondent that efforts were made to get the description of Kalavathi in 1995 voters’ list (Ex.B.32) corrected during enumeration of 1999 voters’ list (Ex.B33). The probability, therefore, is that Kalavathi is not the wife of Murahari Rao. If really Kalavathi was married to Murahari Rao, she, her father and others, in normal course of human conduct, after coming to know that Murahari Rao has been living with Simhachalam and begot children, would have held a Panchayat. Instead, Kalavathi going to Bhimavaram, which is not the permanent place of posting of Murahari Rao as teacher, and living in the same house, in which Simhachalam is living, is against ordinary course of human conduct, because two ladies do not, and cannot, live in the same roof with one man as their husband. The statement of Nagabhushan Rao (RW.8) in cross-examination, that neither he nor his father provided any property or maintenance to Kalavathi, in my opinion, gains significance.

Most probably because of the poor mental state of Kalavathi, her brother Nagabhushana Rao, for his own reasons, might not be taking care of her. Her father Manmadha Rao, because of his old age, also might not have taken proper care of her. So, Murahari Rao, taking into consideration that she is his sister’s daughter, must have brought and kept her with him, because he is a teacher and his father-in-law is a well to do person, either to assist Simhachalam or for other reasons. The evidence of Manmadha Rao (R.W.10), in contrast to the evidence of first respondent, Nagabhushana Rao and the other RWs, that Kalavathi used to cook separately for herself, clearly stated that Kalavathi mingled with Bhagatas and so (he’ used to cook separately, after taking provisions from his daughter Kalavathi. This statement of PW. 10 gains support for my assumption that that Murahari Rao only brought Kalavathi as her guardian, but not as her husband. Probably taking advantage of the innocence of Kalavathi and her living at Bhimavaram in the guardianship of first respondent, first respondent might have used the services of Kalavathi, Nagabhushana Rao and Manmadha Rao, probably convincing that her being an M.L.A. would be to their advantage, might have made them say that there was marriage between Murahari Rao and Kalavathi because none of them would suffer a loss by stating so. If Kalavathi really is the wife of Murahari Rao, and if Kalavathi and Simhachalam are living amicably, Kalavathi should also be seen in the photographs taken at the time of the marriage of first respondent. First respondent, as R.W.1, clearly admitted that Kalavathi is not found in any of the wedding photographs produced by her. For the above reasons, and due to the absence of any documentary evidence showing the status of Kalavathi as the wife of Murahari Rao in view of the entries in Exs.B.32 and B.33, I am not able to believe that there was marriage between Kalavathi and Murahari Rao.

47. The entries in Ex.X.2, Service Register of Murahari Rao (RW.2), in fact, belie the oral evidence adduced by the first respondent that Murahari Rao’s first posting, as teacher, was Gujjali. The first entry in Ex.X.2 shows that Murahari Rao was selected for appointment as Higher Grade Teacher by D.S.C., Z.P. SKL (i.e., Zilla Parishad, Srikakulam), and was allotted to P.S, (Panchayat Samithi) Pachipenta vide proceedings dated 6.10.1965, and was appointed as single Teacher (Higher Grade), S.C. School, Bhimavaram by the President, P.S. Pachipenta vide proceedings dated 21.10.1965. Therefore, the first posting of Murahari Rao, after his appointment as Teacher, was at Bhimavaram. The next entry in Ex.X.2 shows that Murahari Rao joined at Bhimavaram on 1.11.1965 forenoon. The next entry in Ex.X.2 shows that Murahari Rao was transferred to Kotiparru in November, 1967 (since some part of the page containing the date is torn, the date is not known), and that he was again transferred to Bheemapoli vide proceedings dated 23.12.1967 and from thereto Gajapathinagaram vide proceedings dated 23.12.1969 and from there to Gurla in August 1971, and from thereto Uddangi on 31.7.1972, and from Uddangi to Gajapathinagaram in November 1974, and was again transferred to Bhimavaram in 1980, where he joined duty on 19.3.1980, and was again transferred to Gummakota where he joined duty on 1,2.1981. Volume-II of Ex.X.2 relates to his service at Gummakota. Volume-Ill of Ex.X.2 shows that Murahari Rao was posted as single Teacher in M,P. Elementary School, Gujjali, but the details of his date of joining, etc., are not mentioned. From the entries in Ex.X.2 it is clear that Murahari Rao worked at Bhimavaram from 1.11.1965 to December 1967 and was again transferred to that place only in 1980. The evidence of Murahari Rao., as R.W.2, in chief-examination, is that he was transferred to Uddangi in 1970, his father-in-law’s place, and so he used to stay in the house of his father-in-law with Kalavathi, and that after coming to know that he was about to be transferred from Uddangi, he took Kalavathi to Bhimavaram and left her there in the house of Sobha Rama Raju. As per the entries in Ex.X.2, Murahari Rao was transferred from Uddangi to Gajapathinagaram in 1974. When he was transferred to Gajapathinagaram from Uddangi, there can be no reason for Murahari Rao to take Kalavathi from Uddangi to Bhimavaram. This statement, in fact, shows that Murahari Rao made Bhimavaram as his permanent place of residence obviously because he married Simhachalam and begot children through her. As stated earlier, he might have taken up the guardianship of Kalavathi and took her to Bhimavaram.

48. According to the case of first respondent her maternal grandfather Rama Raju is an aristocrat among the tribals. So Rama Raju would not have also permitted Murahari Rao to have an extra marital affair with his daughter :Simhachalam, and beget children through her, without marriage. Similarly he would not have permitted another woman to stay as the wife of Murahari Rao in his house. For that reason also, the contention that there was no marriage between Simhachalam and Murahari Rao and that Kalavathi was living in the house of Murahari Rao as his wife, cannot be accepted.

49. Ex.X.11, which is an entry at S.No. 62 of Ex.X.10 and Ex.X.20, an entry at S.No. 62 of Ex.X.19, relate to the first respondent. In both the entries the native place of first respondent is shown as ‘Vippalavalasa’. The name of her father and guardian is shown as ‘Murahari Rao’ and her place of residence is shown as ‘Bhimavaram’, In Ex.X.11 her date of birth is shown as 16.5.1965 and date of joining is shown as 21.6.1971. Her caste is shown as ‘Karnam’. But in Ex.X.20 her date of birth is shown as 16.5.1969, date of joining is shown as 21.6.1971 and her caste is shown as ‘Bhagatha’. The significance of page 4 of Ex.X.19, containing Ex.X,20 entry, is that only in respect of the first respondent at S.No. 62 and another person at S.No. 65, the date of joining and caste are mentioned. Against the remaining 26 other names found in that page the caste details and dates of joining of those pupils are not mentioned. Ex.X.12 and Ex.X.13 are the record sheets relating to the first respondent produced by P.W.10. They show the date of birth of the first respondent as 16.5.1969. It is necessary to mention here that P.W. 10, who was summoned to produce the Admission Register of M.P. Elementary School, Bhimavaram, was cross-examined at length by the learned Counsel for the first respondent and during cross-examination of P.W.10 by the learned Counsel for first respondent Exs.X.14 to X.23 were marked. Ex.X.17 is the charge list prepared when Y. Venkatanarayana took over charge from B.V.S. Eswara Rao on 1.8.1998. Ex.X.18 is the charge list prepared when Y. Venkatanarayana handed over charge to Ch. Jagdish (P.W. 10). Though Ex.X.17 shows mat one Admission Register was taken charge of, Ex.X.18 shows that two Admission Registers, i.e., one old another new, were handed over and taken charge of. During cross-examination PW.10 stated that Ex.X.10 is the New Register, and that Ex.X.19 is the Old Register. The entries in Ex.X.19 at S.No. 62 (marked as Ex.X.20), S.No. 94 (marked as Ex.X.21), S.No. 98 (marked as Ex.X.23) and S.No. 114 relate to the four children of Murahari Rao and Simhachalam, Significantly in Ex.X. 19 the native place of all the four children of Murahari Rao and Simhachalam is shown as Vippalavalasa, but not as Bhimavaram. As stated earlier, the entries in Ex.X.2 show that Murahari Rao (RW.2) worked as teacher in Bhimavaram School from 19.3.1980 to 1.2.1981. So he also was responsible for the maintenance of either Ex.X.10 or Ex.X. 19. So, the best person, from out of all the witnesses examined, to say as to which of Exs-X. 10 and X.I9 is the correct Register, is Murahari Rao (RW.2). But, for the reasons best known to the first respondent, nothing was elicited through RW.2 in his chief-examination as to which of Exs.X.10 and X.19 is the correct Register that was maintained by him during his tenure as a Teacher at Bhimavaram School. During cross-examination on behalf of petitioner in E.P.No. 25 of 1999, Murahari Rao admitted that the entry at S.No. 62 of Ex.X.10 describing Hymavathi (first respondent) as resident of Vippalavalasa is true and correct. During cross-examination for petitioner in E.P.No. 26 of 1999 also he admitted that the description of the student named Hymavathi, at S.No. 62 of Ex.X.10 relates to his daughter i.e., RW.1 and her father’s name is shown as Murahari Rao and her date of birth as 16.5.1965. But during re-examination he stated that though S.No. 62 of Ex.X.10 relates to RW.1, the date of birth and caste mentioned are not correct.

50. From the answer given by PW.10 to the question put by Court, it is seen that he joined service as teacher in August 1998, and that he was not summoned to produce Ex.X.17 and Ex.X.18, and that he, out of his own accord, brought Exs.X.17 and X.18, to Court. During further cross-examination by the learned Counsel for first respondent by putting leading questions, he stated as follows:

“It is true that what record was felt by me as necessary for giving answers in Court is brought by me to Court. It is very true that I anticipated that the Counsel for first respondent would put me a question as to how two admission registers came into existence and with a view to answer his question with relevant record 1 brought Exs.X.17, X.18 and X.24 with me to Court today.”

Here it should be noted that during cross-examination of PW.2 on behalf of first respondent (at page-8 of the deposition) it was suggested that Mrs. Aruna, a Minister, visited Bhimavaram thrice prior to 1999 and that first respondent provided hospitality to her. In fact, first respondent, as R.W.1, during cross-examination admitted that she is closely acquainted with Padala Aruna, who became a Cabinet Minister in 1996 and that she (Aruna) used to visit her house and accept her hospitality. So, first respondent, who is declared elected as M.L.A., either using her influence, or her closeness with the ex-minister Mrs. Aruna, could have brought pressure on PW.10, a newly appointed teacher, and made him produce the documents of her choice, i.e., Exs.X.17, X.18 and X.24, and got them marked during his cross-examination, taking advantage of Section 143 of the Evidence Act, which permits leading questions being put during cross-examination. But merely because they are marked through P.W.10, Exs.X.17, X.18 and X.24 cannot be taken into consideration unless they are proved. Documents like Exs.X.17, X.18 and X.24 can be brought into existence at any time. Existence of those documents is not evidenced by any registers maintained in the regular course of business by the Bhimavaram School. Since Ex.X.18 contains the signature of PW.10, PW.10 can prove Ex.X.18. But PW.10 cannot prove Ex.X.17 and Ex.X.24, which do not contain his signature. In order to rely on Exs.X.17 and X.24 first respondent ought to have examined Y. Venkatanarayana, from whom PW.10 took charge, and establish that two admission registers, in fact, came into existence during his period. The said Venkatanarayana would be in a position to explain the reasons for opening a second admission register. Since Y. Venkatanarayana, the alleged signatory to Exs.X.17 and X.18, and during whose period Ex.X.19 allegedly came into existence, and V.V.S. Eswar Rao and the other signatory to Ex.X.24, are not examined, Exs.X.17, X.19 and X.24 cannot be said to have been proved. If Ex.X.19 is true, there is no reason for PW.10 not continuing that register and his continuing Ex.X.10 register.

51. One significant and striking feature in Ex.X.19 is column No. 12, which relates to the caste of the pupil. From out of the names of pupils with S.No. l to 84 entered in Ex.X.19 only the castes of pupils with S.Nos. 42, 52, 56, 62, 65 are noted, and in respect of all the other pupils column No. 12 is left blank. From out of pupils with S.Nos. 85 to 140 in Ex.X.19 castes of pupils with S.Nos. 85, 86, 88, 91,94, 96, 98 to 101, 103, 110, 111 and 119 only are noted and for all the remaining pupils column No. 12 is left blank. In respect of pupils with S.Nos. 141 to 180, caste of pupil with S.No. 176 only is kept blank and the castes of all the other pupils are noted. Similar is the case with column No. 9 relating to dates of birth of the pupils. The dates of birth of pupils with S.Nos. 1, 16, 42, 52, 56, 62, 65, 85, 86, 88, 91, 94, 96, 98 to 101, 103, 106, 108, 110, 111, 116, 117, 119, 129, 139 and 141 to 170 only were filled and the dates of birth of all the other pupils arc kept blank in Ex.X.19. On the contrary, both columns 9 and 12 in respect of all the pupils admitted were filled in Ex.X. 10 Register. Judicial notice can be taken of the fact that without furnishing the date of birth no pupil would be admitted into any school, because age of the pupil at the time of admission has to be known for granting admission into the school. This apart, a careful examination of the entries in Ex.X. 19 at page-8, relating to the first respondent, shows that extra care was taken in respect of the entries relating to her only. Column-8, relating to date of joining, is filled in only in respect of first respondent, and that column is not filled in respect of all the other pupils. In fact, in respect of most of the pupils Column-8 in Ex.X.19 is not filled in Column No. 10, relating to whether the pupil is vaccinated or not, is kept blank in respect of all the pupils with S.Nos. 1 to 180 except in respect of pupils with S.Nos. 52 and 62, which relates to first respondent. In contrast, in Ex.X.10 column No. 10 was filled in for pupils with S.Nos. 1 to 56, 85 to 201, and in respect of pupils with S.Nos. 57 to 84 and 202 to 271 the column is kept blank. Column No. 13 of Ex.X.19 relates to the class in which the pupil is admitted. In respect of first respondent only it is, specifically entered as ‘Taragati No. 1’ (1st standard), though all the other pupils noted above also were admitted in 1st standard and column in respect of those students was filled with ‘ditto’. Only in respect of first respondent column No. 14 of Ex.X.19, which relates to “date of application for record sheet” is noted. Therefore, I am of the opinion that Ex.X.19 register was brought into existence with some purpose, and is not a true and genuine register and Ex.X.10 only is the genuine admission register. It should be so because PW.10 clearly stated in his re-examination that he is continuing Ex.X.10 register, and is not continuing Ex.X.19 register. Be that as it may, column Nos. 3 and 6 in Ex.X.10 and Ex.X.19 relating to the native village (or town) of the pupil, and his or her place of stay, relating to first respondent, her sisters and brother, show that they are all natives of Vippalavalasa and are staying at Bhimavaram. Obviously those details must have been furnished by Murahari Rao, or the father of Simhachalam, while admitting them into the School. If first respondent, her sisters and brother were born and brought up at Bhimavaram, as illegitimate children of Simhachalam, there is no earthly reason for Murahari Rao, or the father of Simhachalam, mentioning the native place of the children of Simhachalam as Vippalavalasa. It is not even the case or contention of the first respondent that column No. 3 in Ex.X.10 and X.I9, relating to native place of the pupil, is wrongly mentioned with respect to her, her sisters and brother. In fact, Murahari Rao, as R.W.2, admitted that the description of Hymavathi (first respondent) as resident of Vippalavalasa is correct. Therefore, in view of the entries
in column No. 3 of Ex.X.10 and X.19 at S.No. 62 and the admission of Murahari Rao it has to be taken that first respondent is a native of Vippalavalasa, but not Bhimavaram, and for this reason also the contention of the first respondent that she is the illegitimate child of Simhachalam is not, and cannot be, true.

52. In my considered opinion, the date of birth of the first respondent, i.e., whether she was born in 1965 or 1969, is of little significance, or importance, for a decision in this case, more so because it is not even the case of petitioners that even before Murahari Rao was posted as a teacher at Bhimavaram he had relation or affair with Simhachalam. Since the entries in Ex.X2 show the Murahari Rao was posted at, and took charge on 1-11-1965 at Bhimavaram, first respondent could not have born on 16-5-1965 to him. So, obviously the year of birth ‘1965’ mentioned in Ex.X.10 is not correct. But that fact, by itself, is not and cannot be a ground to disbelieve Ex.X.10, because it is well known that in yester years, parents who are anxious to put their children in school at a young age used to inflate their age. So, there is every possibility Murahari Rao, in his anxiety to send the first respondent to school early, inflating her age by showing her date of birth as 16.5.1965. Since it is not necessary and relevant for deciding this case, I am not giving a finding on the date of birth of the first respondent.

53. Apart from all the above, since Simhachalam and Murahari Rao admittedly are living together and are recognized as husband and wife and have begotten six children. Though it is the case of first respondent that there are three Patnaik families in Bhimavaram and that those Patnaiks did not treat her as Patnaik, first respondent did not choose to examine any of the members of the two Patnaik families, but chose to examine the third Patnaik as RW.10, who is her relative. The non-examination of independent Patnaiks living in Bhimavaram has its own tale to tell. For all the above reasons, a presumption of marriage between Murahari Rao and Simhachalam can be drawn, and the children born to them have to be treated as legitimate children in view of the ratio in S.P.S. Balasubramanyam case (supra) and R.P.P. Mali case (supra). Therefore, first respondent, who is born to Murahari Rao, a Patnaik, gets the caste of her father only, but not the caste of her mother, and so I hold that first respondent is a Patnaik by birth.

54. The other ground on which first respondent claims to be a Bhagata is her marrying her mother’s brother, who admittedly is a Bhagata. Her marriage with Bhagata man may make first respondent a member of Bhagata caste for all other purposes, except for the purpose of claiming reservation to posts reserved under Articles 15(4), 16(4) and 330 of Constitution, in view of the ratio in D. Neelima case (supra), Valasamma Paul case (supra), A. Prathyusha case (supra) and Laveti Giri case (supra). She can claim a right of reservation as a Scheduled Tribe woman on the basis of her marriage with Appala Raju (RW.3) only when she is able to establish that she has suffered all the handicaps, disadvantages and restrictions of a Scheduled Tribe woman and had been recognized as a Scheduled Tribe woman by the society. So it has to be seen if the evidence on record establishes that first respondent suffered the handicaps, disadvantages of a Scheduled Tribe and was recognized as a member of Scheduled Tribe by the society in which she lived. The evidence of PWs. 1 to 7 shows that first respondent is being treated only as a Patnaik or Sistu Karnam and not as a Bhagata. Only RW.5 has the semblance of an independent witness. All other RWs are interested witnesses. From the cross-examination of RW.10 it is seen that he is closely related to Sobha people of Bhimavaram. So, it is clear that he also is related to first respondent and cannot be said to be an independent witness.

55. The specific case of the first respondent is that she studied up to 5th class at Bhimavaram and was married at the age of 13 years and immediately after her marriage joined her husband at Visakhapatnam and pursued her further studies there and got employed. If really first respondent was brought up as a tribal, she must be knowing the customs and traditions of tribal and must have followed those traditions and customs. RW.6, a friend of the husband of first respondent, i.e., RW.3, stated that he took photographs at the marriage of RW3 and first respondent. Ex.B11 is the reel of negatives of the photographs taken by RW6. In those photographs first respondent is seen wearing a sari with the pallav on her left shoulder. For a question put to RW.2, Murahari Rao, reading:

“I put it to you that because your daughter Hymavathi (RW.1) is a non-tribal, she had the pallav of her sari on her left shoulder and that tribals in the photographs wore the pallav of their sarees on their right shoulders”

he gave the following answer:

“Since Hymavathi studied in Vizag, she developed the habit of wearing Pallav on the left shoulder, as per the custom prevailing in the city area.”

This answer of RW.2 is in consonance with the evidence of PW.2 that first respondent after finishing 5th standard at Bhimavaram studied in a residential school at Vizag (Visakhapatnam). So, the evidence of first respondent as RW.1 that she went to Visakhapatnam only after her marriage with RW.3, is not, and cannot be, true. The evidence of RW.3, husband of first respondent, shows that he underwent training from 1.11.1975 to 1.11.1979 and was appointed in Hindustan Shipyard on 1.11.1979 and married Hymavathi (first respondent) on 20.3.1983. In Ex.X.13 record sheet of first respondent it is stated that she is under the guardianship of Appala Raju (RW.3), and completed 5th class on 12.6.1979. So, it is easy to see that RW.3 took first respondent with him to Visakhapatnam after she completed 5th class at Bhimavaram, and must have admitted her in a school there. Thus, from the evidence of RWs.1 to 3 it is seen that except during her childhood, when she studied classes 1 to 5 at Bhimavaram, first respondent spent major part of her youth at Visakhapatnam, and grew up like an urban girl but not as a tribal, and does not follow the dress style of tribal ladies and that she does not even know the customs of tribals, more so because R.W.5 admitted that first respondent is known as ‘Karanamgari Papa’. If really first respondent was being treated as a tribal, and as an illegitimate child of Simhachalam, the question of people recognizing first respondent as ‘Karanamgari Papa’ does not arise. Here it should be stated that in Srikakulam, Vizianagaram and Visakhapatnam Districts, Sistu Karanams, i.e., Patnaiks, are usually called as ‘Karanams’. The fact that the first respondent is being recognized by the community as ‘Karanamgari Papa’ also shows that she was not being treated as a tribal but was being treated as ‘Karanam” i.e., Sistu Karanam or Patnaik,

55, While speaking about the customs and traditions of tribals, first respondent, as R.W.1, stated as follows:

“The marriage of a Bhagatha, as per Bhagatha cnastoms, will be performed for three days. On the first day the bridegroom’s party goes to the house of father of bride and presents a goat, rice and performs the Betrothal, and takes the bride and her party to ‘VIDIDI’ i.e., house given to lodge the bridegroom party. On that day ‘Kankanams’ will be tied to both bride and bridegroom, and they would be bathed with turmeric water. On the second day a goat will be sacrificed near the marriage Pendal, and the feet of the bridegroom would be wetted with the oozing blood of the sacrificed goat, and wooden slippers would be given to him and would be paraded on the back of a horse in the village in a procession. The bride will be following the bridegroom’s procession in a ‘Chapta’ or a ‘Pallaki’. On the same day Pasupu Kunkuma will be presented to the family Deity of ‘Racha Polamma’, and our village Goddess in ‘Gangamma’. ‘Pasupu Kunkuma’ would be offered to village goddess also. In fact, presenting ‘Pasupu Kunkuma’ to the family goddess and village goddess takes place in the first instance, during morning, and the bride and bridegroom would be taken in procession during night. After completion of the procession, the bride and bridegroom would be brought back to the Pendal and the bridegroom would tie the ‘Thali.’ We have ‘Dhoom Bajas’ but not a marriage band in our wedding, ‘Dhoom Bajas’ is compulsory in our weddings. There will be no officiating priest in ‘Bhagatha’ weddings. During lunch and dinner on all the days of wedding non-vegetarian is a must in Bhagata weddings. On the third day the ‘Kankanams’ tied on the first day would be untied, and the bride would be sent with the bridegroom. The feast will be given in bridegroom’s party on the third day night. In Patnaik weddings, bridegroom would not be mounted on a horse for being taken in wedding procession. Patnaiks do not serve non-veg on the wedding day. They do not have ‘Dhoom Bajas’. There will be officiating priests in Patnaik’s weddings. No animal would be sacrificed in the weddings of Patnaiks.

My marriage was performed as per tribal custom, at the house of Rama Raju, my maternal grandfather.

“Itukala Pandaga’ is the most important festival among Bhagathas. The Pandaga (Itukala Pandaga) would be performed for five days starting from the Full Moon Day in the Ugadi month. Bhagatha ladies perform ‘Dhimsa’ dance. This ‘Dhimsa’ dance, and Itukala Pandaga is the dance and festival of all the tribals in our District. Ladies with their hand in hand of another perform the ‘Dhimsa’ dance. On the last day, all the gents would go for hunting. They should hunt some animal and bring that hunted animal. The hunted animal would be brought to the village, and their meat would be shared by all the villagers. All the tribals, wherever they may be, would have to come to their native place and take part in Itukala Pandaga.”

In the Article ‘Bhagatas of Andhra Pradesh’ in the Magazine ‘Girijan Samskiti’ it is stated as follows with regard to Betrothal:

“Betrothal ceremony: (Bondumudupu)

The boy’s party carry with them 10 to 20 measures of rice, one goat, two sarees with blouses, one for the bride and another for her mother, a silver ring and thick bunch of cotton garland (Bondu). The girl’s parents arrange community feast” with the rice, goat, etc., brought by boy’s party. The boy’s party put the bondu in the neck of girl and present a ring. After completing the community feast, amount of bride price (Voli) and date of marriage are fixed. Generally marriages are fixed after six months or one year of betrothal ceremony.

One or two days before the actual date of marriage the boy’s party goes to the village of girl. They carry with them sufficient quantity of rice for arranging feast one or two goats, a box (Kata Petta) containing new clothes for girl, ornaments to her parents etc., and halt at the outskirts of the village. After knowing about the arrival of the boy’s party the bride’s party carry cooked food, water, etc., to outskirts and feed the groom’s party. This feast is known as ‘dulivindu’ in local parlance. The girl’s parents arrange community feast with rice, dal and meat provided by boy’s parents. The next day the bride is taken to the groom’s village with the accompaniment of beatings of drums and blowing of trumpets. The girl’s party wait at the outskirts of the village where the boy’s party serves lunch (Dulivindu). Then the bridegroom and the bride stand on the bridle path and Disari (Religious priest) sacrifices a fowl. He puts lime, flowers, coconut, a wick etc., in a leaf plate made out of banyan leaves on the design drawn and waves around the couple thrice (surulimpu). Both groom and bride spit into the leaf plate, and then leaf plate is thrown away. A decorated pot is kept behind the bride and groom and both of them kick the pot (kicking the Royyakunda). Then the couple accompanied by their respective ceremonial friends are carried to village central place called chavadi or Chaduru where the traditional village council meets and traditional folk dances arc performed. Four sturdy people make the bride, her ceremonial friend or associate bridegroom and his ceremonial friend or associate of the groom to sit on their shoulders and take them in procession to the accompaniment of beating of drums and blowing of trumpets. The procession ends up at the house of bridegroom and they are carried inside the pandal. At the auspicious time fixed by Disari, the bridegroom press the feet of the bride with his right foot and then ties marriage badge in the neck of bride. Then both of them are taken inside the house and they sit on small wooden stools. Food cooked with rice and greengram (pulagam) is kept before them. The groom takes this food and smears the body of the bride and bride repeats this process and both take bath.

………… The father of the groom sits first and his wife sits on his lap. The groom sits on the lap of his mother and then bride sits on the lap of her husband. Her ceremonial friend sits, on her lap and ultimately the ceremonial friend of boy sits on the lap of fifth person. Each one joins their hands and raises over their heads. The Disari prepares a small cup out of food and put oil and wick in each cup and keeps them on the raised hands of six persons. The priest while chanting mantras, pour turmeric water from two new pots over six persons. Thus, the ceremonial friend of respective bride and groom are also inducted into the sacred fold of their diminutive association. Sometimes the bride and groom also enter into ceremonial friendship with new person if they desire on this sacred and happy occasion. After observing the rituals of ceremonial friendship, the couple are put to series of rituals tests.”

56. In the Book “MADAGADA -A Tribal Village in Araku Valley” referred to above, the details of marriage are given at pages 60 to 64 as follows:

“Marriage is the most important turning point in the life of an individual. It is the most happy and joyous of all ceremonies connected with the life of a man or woman. It not only satisfies their biological urges but also gives them status in the village society. Unless a man or woman is married, he/she is not considered to be a responsible member of the society. The prestige of an individual is thus intrinsically linked with his/her marital status. This is very much true in the case of tribal societies, A tribal man would try to acquire a mate by the following four socially accepted methods of acquiring a mate which are resorted to by the triabals of Madagada Village:

1. Marriage by negotiation.

2. Marriage by mutual consent and elopement.

3. Marriage by capture.

4. Marriage by service (Illatam).

The first and the last methods of acquiring the spouse are socially recognized and practised by the non-tribals while the other two methods are vehemently disapproved by the non-tribal groups of the village. The marriage ritual associated with these four methods, varies in details from one method of the other.

Marriage by negotiation is the most popular means of marriage, accepted and practised by all the communities of the village. Among the tribal communities of the village it denotes not a single ceremony in which the man and the woman are united together for a lifetime. It comprises a series of ceremonies covering a period of more than 10 days sometimes.

Negotiations are first initiated by the boy’s parry. The boy’s party takes 20 measures of rice and one goat to the girl’s parents. The elders of both the parties enquire about each others’ terms and conditions like amount of bride-price to be paid and clothes to be presented at the time of the marriage. If they reach an agreement, the rice and goat are accepted by the girl’s parents or else the same are refused. Immediately after the agreement, the boy’s party presents a new sari to the girl’s mother and the stipulated bride-price is also given to the girl’s parents. The marriage day is also fixed in consultation with the Guru (Marriage priest). On the marriage day the girl’s party arrives at the boy’s place. The party consists of the bride and other relatives of the bride except her parents. The boy’s party erects a pandal in front of the bridegroom’s house and nine earthen pots are tied to the poles on the four corners of the pandal and in the middle eleven such pots are fixed. These pots are decorated with turmeric and rice powder before they are tied to the poles. Four small earthen-lamps are placed in the four corners while two lamps are placed in the middle of the pandal.

Generally the marriage celebrations take place in the evening. The tribal Guru officiates the marriage. He makes a ring out of a piece of cloth and keeps it around the necks of the bride and the bridegroom. Then two sturdy men carry the bride and the bridegroom on their shoulders and take them in a procession through the streets of the village to the accompaniment of the beating and blowing of drums and trumpets. After returning home from the procession, the bride and the bridegroom are jointly served food in one plate. First the bride feeds the bridegroom and the bridegroom follows suit and feeds the bride in return. Then a community feast ensues with much merriment and rejoicing. The rest of the night is spent in group singing and dimsa dance. Both men and women dance to the turn of music played by the Valmiki Bajanari. All the nearby villagers also participate in the marriage celebrations.

On the following day, the bride and the bridegroom are seated under the pandal and the Guru performs Puja to the various Gods and Goddesses of the village and propitiates the ancestor spirits also in order to seek their blessings. The newly weds are given bath after which they wear new clothes. They are taken to a hillstream where the bridegroom takes water into his mouth and spits it on the face of the bride, and the bride also repeats the same process. Repeating the same process, the bride and bridegroom start homewards. The bridegroom carries a long pole, to one end of which a jack fruit is loosely fastened with rope. As the bridegroom walks, he lowers down the end of the pole from which the jack fruit is hung, and the jack fruit slips down the pole and falls on the ground. The bride picks it up and keeps the jack fruit in position on the pole. The same process is repeated all the way until they reach home. Finally the bridegroom spits water o the bride’s face. The bride also retaliates. Thus they return home. The whole process of spitting water on each other’s face and the picking up of the jack fruit by the bride symbolizes the ceremonial initiation of the bride and the bridegroom to face the insults that may be fall them during their married life with patience and the wife is expected to extend her helping hand to her husband whenever he needs it.

The final stages of the celebrations are marked by ceremonial exchange of gifts between the bride’s party and the bridegroom’s party. The close relatives of the bride’s party present rice, goat and pumpkins, to the bridegroom’s party and the bridegroom’s party in return presents new clothes to those relatives who had given them rice, goats, etc. After dinner, the bridegroom’s party distributes goats to the different village people, who have participated in the marriage celebrations. On the third and final day all the relatives sit under the pandal and the bride puts turmeric powder on the foreheads of the elders who have attended the function. The bridegroom ties kankanam to the right wrists of all the elderly men and women and they in return present money to the bridegroom. Thus, the marriage celebrations come to an end.

In the article ‘Bagatas of Andhra Pradesh’, referred to above, it is stated:

Ceremonial washing of the feet of relatives:

On the third day, a wooden stool is placed in the center of the pendal. The wife and husband wash the feet of each relative who attended the marriage celebrations. The bridegroom pours water on the feet of each relative and bride cleans the feet and then put vermillion on the foreheads of young couple and present some money.”

57. The details of the ceremonies of marriage given by RW1 do not tally with the details mentioned in the books, as extracted above. So, it is clear that the marriage of RW1 was not performed as per Bhagatha customs and rites.

58. RW6, who took photographs at the marriage of first respondent with RW.3, took Ex.B31 photograph of the persons who attended the marriage. Ex.B31 is the same as Ex.B12. RW6 stated that except the 4th man from the right in Ex.B31 he does not know the other persons therein. The evidence of Murahari Rao as RW2 is that he does not know anybody in Ex.B12 (which is same as Ex.B31) and denied the suggestion put to him during cross-examination that all the persons found in Ex.B12 are Patnaiks from Vippalavalasa. It is not possible to believe that Murahari Rao does not know the persons that attended the wedding of his daughter, first respondent, with Appala Raju (RW3), who is his own brother-in-law. Moreover, RW6, who was taken by RW3 to Bhimavaram Village for the purpose of taking photographs of his marriage, would not have taken the photograph of utter strangers to the bride and bridegroom. All the relatives and friends of the first respondent and Appala Raju (RW3), who attended their wedding should, and must be, known to Murahari Rao (RW2). So, obviously to avoid giving details of the persons found in Ex.B12, RW2 must have conveniently stated that he does not know them.

59. It is seen that first respondent went to Visakhapantam for studies after finishing 5th standard and continued to stay there. She studied in Bhimavaram in classes I to V only during childhood. She does not even know the details of the customs of Bhagatas. For reasons best known to first respondent, she did not examine any independent witness from Uddangi or Vippalavalasa or Bhimavaram to speak to the fact that she was not treated like a Patnaik. Even as per the decision cited by the learned Counsel for first respondent if a non-tribal is accepted as a tribal, he/she can claim such benefit. That is a matter of evidence. No independent witness is examined to show that first respondent is treated as a tribal. There is also no evidence on record to show that first respondent, while she was staying at Visakhapatnam, suffered the handicaps, restrictions and disadvantages of a tribal woman. So, she is not entitled to seek the benefit of reservation available to a tribal, by virtue of her marriage with Appala Raju (RW3), a tribal man, in view of the ratio in Valasamma Paul case (supra), D. Neelima case (supra), Dr. T. Rajeswari case (supra) and A, Pratyusha case (supra). Therefore, I hold that first respondent, who is a Patnaik by birth, and became a Bhagata, which is a Scheduled Tribe community, by virtue of her marriage with Appala Raju, a Bhagata man, is not entitled to contest as a Bhagata woman from a seat reserved for a Scheduled Tribe candidate, because she did not suffer the handicaps, restrictions and disadvantages of a Bhagata woman after her marriage. The issue is answered accordingly.

Issue No. 2

60. The contention of the learned Counsel for first respondent is that since the petitioners failed to raise an objection regarding the community of the first respondent at the time of scrutiny of nominations, and since they also failed to question the community certificate issued to first respondent by the competent authority under the provisions of 1993 Act, petitioners are not entitled to question her status in those proceedings and are also estopped from raising an objection relating to the caste of the first respondent. I am unable to agree with the said contention because failure to raise an objection at the time of scrutiny of nominations does not disentitle an election petitioner from questioning the ineligibility of the candidate to contest the election, in an election petition. As per Section 81 of the Act, an election petition can be filed by any elector also. ‘Elector’, as per explanation to Section 81 of the Act, means a person who was entitled to vote at an election to which the election petition relates, whether he has voted at such election or not. When a voter, entitled to vote in an election, can also question the election, it is easy to see that he cannot be non-suited on the ground that he failed to question the eligibility of the candidate at the time of scrutiny. At the time of scrutiny some facts may not be within the knowledge of the other contesting candidate. Moreover, there cannot be an estoppel against a statute. Therefore, even if the petitioners did not object to the caste of the first respondent at the time of scrutiny of nominations, they cannot be estopped from questioning the election of the first respondent, by way of an election petition, on the ground that she is ineligible to contest from a constituency reserved for a Scheduled Tribe candidate.

61. The other important question is whether the certificate issued under 1993 Act is a bar for questioning the status of the first respondent as a Bhagata as mentioned in the certificate. Preamble of 1993 Act shows that that Act was brought into force to curb the evil of candidates seeking employment in Government Departments, public sector undertakings and other organizations, and admission into educational institutions, against the vacancies or seats reserved for Scheduled Castes, Scheduled Tribes and backward classes are producing false certificates. Section 3 of 1993 Act reads as follows :

“Application for issue of a Community Certificate :–(1) Any person, belonging to any of the Scheduled Castes, Scheduled Tribes or Backward Classes may in order to claim the benefit of any reservation provided to such Castes, Tribes or Classes either for any public appointment or for admission into any educational institution in the State or outside the State for the students of the State or any other benefit under any special provisions made under Clause (4) of Article 15 of the Constitution of India or for the purpose of contesting for elective post in any local authority or for elective posts in the. Co-operative Institutions, make an application in such form and in such manner as may be prescribed to the competent authority for the issue of a community certificate.

(2) Any person belonging to a Scheduled Tribe may, for the purpose of claiming any benefit or protection meant for Scheduled Tribes under any notification, direction or regulation made under the Fifth Schedule to the Constitution of India or under any Act, Rule, Regulation or Order for the time being in force in the Scheduled Areas, make an application in such form and in such manner as may be prescribed to the Competent Authority for the issue of community certificate.

Explanation :–For the purposes of this section and Section 13, “scheduled areas” means the areas as defined in paragraph-6 to the Fifth Schedule to the Constitution.”

From Sub-section (1) of Section 3, extracted above, it is clear that the certificate issued under the 1993 Act would be useful for contesting elective posts in any local body, or co-operative institutions, but not an election to the State Legislature. In fact, elections to the Legislatures of the State and other offices are covered by entry-72 of List-I of Schedule-VII of the Constitution, i.e., the Union List. As per Article 246 of the Constitution, Parliament alone has the exclusive power to make law with respect to the matters enumerated in List-I of Schedule VII, i.e., Union List, and as per Clause (3) of Article 246, subject to Clauses 1 and 2, the Legislature of a State has exclusive powers to make laws for such State or any part thereof with respect to any matters enumerated in List-II of VII schedule, i.e., State List. It is no doubt true that 1993 Act received the assent of the President But that fact, by itself, does not mean that the provisions of the Act can apply to the matters relating to elections to a State Legislature, covered by Union List, because assent of the President for an Act made by a Legislature can give validity to the Act passed by the State Legislature in respect of any subject mentioned in List-Ill, i.e., Concurrent List, which may be repugnant to the law already made by the Parliament in that regard. So, merely because 1993 Act is received the assent of the President, it cannot be construed as a law made in respect of the election to the State Legislature made by the Parliament. Law made by the Parliament alone can govern the election to the State Legislature or Parliament. So, by virtue of the certificate issued in 1993 Act, first respondent cannot, by invoking Sections 7 and 19 of 1993 Act, which bar the jurisdiction of a Civil Court in respect of any order passed by the authorities under the Act and are given an overriding effect on the other laws in force, be heard to say that that certificate is final and cannot be questioned in these petitions. Therefore, this Court is debarred from going into the question of validity of the said certificate.

62. From the evidence on record, it is seen that the first respondent applied for caste certificates on different dates, on the basis that her husband is a Bhagata and is residing at Bhimavaram. Obviously on the basis that the first respondent is the wife of a person belonging to Bhagata community, a certificate that she also belongs to Bhagata community must have been issued, without making an enquiry, worth the name, to find out whether the first respondent suffered the handicaps, disadvantages, etc., of a tribal woman as laid down in Valasamma Paul case (supra). In Ex.X.29 application dated 22.2.1988, submitted by her, first respondent stated that she is a Bhagata and that her husband Appala Raju, S/o. Rama Raju, has been residing at Bhimavaram from several years. On the very same day Ex.X.30 caste certificate was issued to her certifying that she is a Bhagata by caste. The statement of first respondent in Ex.X.29 that she is a resident of Bhimavaram, prima facie, is incorrect because her evidence as R.W.I is that she was married on 23.3.1983 and by the date of marriage her husband, who is 13 years elder to her, was already working in Hindustan Shipyard, Visakhapatnam and that her husband took her to Visakhapatnam and made her appear for Matriculation and that she passed Matriculation in 1987. In fact, during cross-examination she stated that she appeared for Matriculation examination for the first time in 1985 and passed in 1987 on third attempt. When first respondent was living with her husband and was studying at Visakhapatnam, her claim in Ex.X.29 that she is a resident of Bhimavaram is incorrect. She, in fact, did not disclose in her application that her husband is working at Visakhapatnam. The evidence of Appala Raju (R.W.3) clearly shows that he underwent training from 1.11.1975 to 1.11.1979 at Hindustan Shipyard and was appointed in that Company on 1.11.1979. When Appala Raju has been residing at Visakhapatnam from 1975, first respondent applying for obtaining Ex.X.30 on the basis that her husband is a resident of Bhimavaram on the date of application, speaks volumes about the method and manner in which Ex.X.30 certificate was obtained. The evidence of P.W.11, Mandal Revenue Officer, shows that Ex.B.1 dated 12.12.1990, Ex.B.2 dated 18.1.1996, Ex.B.3 dated 22.12.1995, Ex.B.4 dated 18.6.1996 and Ex.B.5 dated 22.6.1999 are the caste certificates issued to first respondent. All these certificates show that first respondent, wife of Appala Raju (R.W.3), is a resident of Bhimavaram. When, in fact, first respondent and her husband Appala Raju (R.W.3) have been residing at Visakhapatnam and when admittedly first respondent’s name does not find place in the voters’ list of Bhimavaram Village, and finds place only in the voters’ list of Visakhapatnam, it is easy to see that all those caste certificates were issued without any enquiry whatsoever. When first respondent was not living at Bhimavaram, the question as to how the residents of Bhimavaram treated her is of little relevance or significance. The question would be as to how first respondent is being treated at Visakhapatnam. There is no evidence in that regard. So, merely on the basis that first respondent has a certificate, nay several certificates, under 1993 Act, and earlier thereto, showing that she is a Bhagata, it cannot be said that she is entitled to claim reservation, when the evidence on record does not show that she suffered handicaps, disadvantages and disabilities of a Scheduled Tribe woman.

63. Since the seat, for which the election was held, is reserved for a Scheduled Tribe candidate, and before accepting the nomination since there has to be some prima facie proof that the candidate filing nomination belongs to Scheduled Tribe, the Returning Officer might have taken into consideration the certificate produced by the first respondent for accepting her nomination. But that by itself, as stated above, cannot be a ground for non-suiting the petitioners.

64. Petitioner in E.P. No. 25 of 1999 died on 17.5.2002. Since all these three elections petitions are being tried together, and since the death of the petitioner in E.P.No. 25 of 1999 occurred subsequent to the closure of evidence by both the parties and at the time of arguments, as contemplated by Section 112 of the Act and Rule 7(b) of the Rules for trial of Election Petitions under the Act framed by this Court, a notification regarding the death of the petitioner in E.P. No. 25 of 1999 was ordered to be published in A.P. Gazette and accordingly a gazette publication of the death of the petitioner in E.P. No. 25 of 1999 was made. No applications are filed by anybody. Therefore, E.P. No. 25 of 1999 stood abated due to the death of sole petitioner therein. Petitioner in E.P. No. 26 of 1999 not only sought for setting aside of the election of the first respondent but also sought the consequential relief of declaration that he is duly elected to the constituency. Petitioner in E.P. No. 26 of 1999 cannot be granted the consequential relief sought by him because admittedly his status as a member of Scheduled Caste is subjudice.

65. For the above reasons, E.P. No. 25 of 1999 is dismissed as abated. Prayers relating to setting aside of the election of first respondent made in E.P. Nos. 26 and 27 of 1999 are allowed with costs and the election of the first respondent to the 28-S.T.-Srungavarapukota Assembly Constituency in Vizianagaram District held in 1999 A.P. General Assembly Elections is set aside. Prayer of petitioner in E.P. No. 26 of 1999 to declare him elected to the said constituency is dismissed without costs. Petitioners are entitled only to one set of costs.

66. After pronouncement of the judgment, the learned Counsel for the first respondent made a prayer to suspend the judgment to enable the first respondent to prefer an appeal to the Supreme Court. Hence the judgment stands suspended till 31-7-2003 to enable the first respondent to prefer an appeal before the Supreme Court and obtain necessary orders.