1. Suit for partition of ancestral property claiming a share based on the legitimacy of the plaintiff's birth. (Para 2 )
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1996 Supreme(SC) 1176
1996(6) Supreme 626
SUPREME COURT OF INDIA
K. Ramaswarny and G.B. Pattanaik, JJ.
Sri Chowdegowda @ Dorji (dead) by LRs,
& Ors. -Appellants
versus
C. Nagaraju & Ors. -Respondents
Civil Appeal No. 10696 of 1996
(Arising out of SLP (C) No. 17781 of 1995)
Decided on 5-8-1996
Counsel for the Parties :
For the Appellants : S.N. Bhat, Advocate.
For the Respondents: P. Mahale, Shante Kr.V. Mahale, Advocates.
Important Points
Where a man and woman live together as husband and wife, there is a legal presumption of a valid marriage and that children born from such a union are legitimate.
Subject
Family Law - Partition
Act Referred
Headnote
PARTITION SUIT-Appellant was born from the first wife-Controversy rcgarding factum of customary marriage of 1st wife which took place in 1920-After 40 years it would be difficult to prove with certainly of evidence of factum of marriage- Appellant s father and that 1st wife had lived together as wife and husband and appellant was born Presumption of valid marriage and that appellant having been born legitimately out of that marriage could be drawn-Preliminary decree of partition allowed. (Para 3)
Legal Category Hierarchy
Table of Contents
2. Dispute regarding the validity of a customary marriage and the resulting legitimacy of the offspring. (Para 3 )
3. Long-term cohabitation as husband and wife supports a presumption of valid marriage and legitimacy of children born from the union. (Para 3 )
4. A presumption of valid marriage and legitimacy of offspring can be drawn where parties lived together as husband and wife. (Para 3 )
5. Appeal allowed; appellant granted a share of the land and a preliminary decree ordered. (Para 3 , 4 )
6. Does cohabitation as husband and wife create a presumption of a valid marriage?
Yes, where parties live together as husband and wife, a presumption of a valid marriage can be drawn, particularly when the factum of a customary marriage is difficult to prove due to the passage of time. (Para 3 )
7. What is the legal status of a child born to parents who lived together as husband and wife?
A child born from such a union is presumed to be legitimate, based on the legal presumption of a valid marriage between the parents. (Para 3 )
ORDER
Leave granted. We have heard learned counsel on both sides.
2. Since this is a long drawn litigation for over 37 years we think it appropriate to give quick end to the litigation instead of remanding the matter to the High Court for further remanding it to the appellate Court. It is not in dispute that Machine Chowdegowda, the father of the appellant had three brothers. The suit came to be filed for partition of 10 acres of wet land, 5.30 acres, of dry land, 30 gunthas of house site into four equal parts and l/8th share towards the appellant-plaintiff. At three stages, the suit came to be dismissed and ultimately in the second appeal No. 204/94, by judgment and decree dated March 17,1995 the High Court of Karnataka confirmed the dismissal of the suit. Thus this appeal by special leave.
3. There is evidence in this case Exs. P-1 4 and P-36 which would indicate that Machine Chowdegowda had described the appellant to be the son born to his first wife, Siddamma. It is seen that there is a controversy as regards the factum of the customary marriage by name Kuduvali marriage which seems to have taken place in early 1920. Under those circumstances, at the distance of 40 years it would be difficult to prove with certainly of evidence of the factum of the marriage etc. But the meat of the fact is that Siddamma and Machine Chowdegowda lived together as wife and husband and the appellant came to be born from the wed-lock. Under those circumstances, the presumption of valid marriage and as to appellant having been born legitimately, out of the that marriage through Machine Chowdegowda could be drawn. This is the legal position settled by this Court in Badri Prasad v. Deputy Director of Consolidation1, Sumitra Devi v. Bhikan Choudhary2 and S.P.S. Baiasubramanyan v. Suruttayan3. The appellant must, therefore, be presumed to be a legitimate son of Machine Chowdegowda. Accordingly, the appellant is granted one acre of the wet land and the rest of the land will be given to the respondents according to the respective shares. A preliminary decree be drawn and an application to pass final decree be made and dealt with by the trial Court.
4. The appeal is accordingly allowed. No costs.
Appeal allowed..
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