1962 Supreme(Mad) 27

Madras High Court
RAMAKRISHNAN,RAMANUJAM
Raghuvir Kumar (minor) by next friend and Mother Smt.D.P.Kamalakumari - Appellant
Versus
Shanmughavadivu - Respondent
Decided On : 01/17/1962

The presumption of marriage arising out of long cohabitation and repute is much stronger than the presumption in regard to other facts.

Headnote:

HINDU LAW - MARRIAGE - VALIDITY - SUYAMARIYATHI OR SEERTHIRUTTHA MARRIAGE - VALIDITY OF - MADRAS ACT 21 OF 1967, SECTION 7-A - SCOPE AND OBJECT OF - INTERPRETATION OF - MARRIAGE PERFORMED AT PERUR TEMPLE - VALIDITY OF - EVIDENCE ACT, SECTION 21 - APPLICABILITY OF - ADMISSIONS MADE BY DECEASED - RELEVANCE OF - PRESUMPTION OF MARRIAGE - CIRCUMSTANCES REBUTTING PRESUMPTION - CUSTOM PROHIBITING SECOND MARRIAGE - PROOF OF - BURDEN OF PROOF - HINDU SUCCESSION ACT, 1956 - APPLICABILITY OF - MAINTENANCE - RIGHT OF FIRST PLAINTIFF TO.

Fact of the Case:

The plaintiffs in O. S. No. 69 of 1960 on the file of the Sub-Court, Coimbatore, are the appellants in this appeal. They filed the suit for partition and separate possession of their alleged 3/10th share of A and B schedule items and for past mesne profits at the rate of Rs. 500 and future mesne profits at the rate of Rs. 2400 per annum from the date of suit till delivery of possession, or in the alternative, for possession of the properties equal in extent and value to that of the properties set out in the will dated 2-5-1949 executed by one Palaniswami Nadar in favour of the first plaintiff. The first and second plaintiffs claimed respectively to be the son and fourth wife of the said Palaniswamy Nadar who died on 5-1-1960 and the suit came to be filed on that basis. The first defendant is the third wife of Palaniswamy Nadar and defendants 2, 3 and 4 are his sons through the first defendant. The fifth defendant is the father of the first defendant and sister's husband of Palaniswamy Nadar. Defendants 6 and 7 are the grandsons of Valliammal, Palaniswamy's maternal aunt and also the sons of his brother, Mounaguruswami. The 8th defendant was impleaded as he was claiming certain rights as usufructuary mortgagee from Palaniswamy Nadar over one item. Palaniswamy got divided from his brothers and sisters by partition deeds dated 3-8-1955 and 6-3-1959 and he died possessed of the properties set out in Schedules A and B to the plaint. Parts I and II of Schedule A to the plaint are the lands and houses respectively left by the deceased Palaniswamy. Part I and Part II of Schedule B are outstanding and moveables respectively left by him.

Finding of the Court:

43. After going through the authorities cited at the Bar, we are inclined, on the facts of this case, where the factum of the celebration of some form of marriage is established, to raise the legal presumption of lawful marriage arising out of the long cohabitation and repute. 44. In the view we have taken, we have to disagree with the decision of the trial court on the main issue relating to the validity of the marriage between Palaniswamy and the second plaintiff and hold that a lawful marriage between them has been established in this case, that the first plaintiff is the legitimate son of Palaniswamy, and that as such they are entitled to the shares claimed by them in the suit. 45. We are, however, accepting as correct the decision of the trial court on other issues referred to earlier in this judgment. As a matter of fact the appellants did not challenge the correctness of the findings of the trial court on other issues at the time of the hearing of this appeal. They confined their attack only on the main issue as to the validity of the marriage. 46. In the result, the decree and judgment of the trial court is partly set aside and there will be a preliminary decree for partition of the plaintiffs' 3/10th share in the estate left by Palaniswamy. On the question of mesne profits, past and future, we direct that the same shall be ascertained by the trial court after enquiry under Order 20, Rule 12 of the Civil Procedure Code. The plaintiffs shall be entitled to their costs in this appeal.

Issues: 1. Whether the second plaintiff is the legally wedded wife of late Palaniswamy Nadar and whether the first plaintiff is the legitimate son of Palaniswamy Nadar? 2. Whether the special custom preventing a valid second marriage pleaded by the defendants 1 to 4 is true and valid? 3. Whether the will dated 2-5-1949 said to have been executed by Palaniswamy Nadar was true and valid and if so, whether the first plaintiff is entitled to substituted properties in lieu of the properties covered by the will as claimed by the plaintiffs and 4. What are the properties available for partition in the event of the plaintiff's claim being upheld?

Ratio Decidendi: 1. The presumption of marriage arising out of long cohabitation and repute is much stronger than the presumption in regard to other facts. 2. Where a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will generally be presumed, though there may be no positive evidence of any marriage having taken place, and the presumption can be rebutted only by strong and weighty evidence to the contrary. 3. The mere fact that there was an earlier marriage subsisting in this case, it cannot be considered sufficient to rebut the presumption of a marriage arising out of long cohabitation and repute. 4. In a society where second marriage is not prohibited under the statute or under the customary law, it is always open for any person to marry a second wife if he so desires and if he goes through a form of marriage and lives with the other party as husband and wife, we find no obstacle to the presumption being raised from the fact of long cohabitation and repute.

Final Decision: In the result, the decree and judgment of the trial court is partly set aside and there will be a preliminary decree for partition of the plaintiffs' 3/10th share in the estate left by Palaniswamy. On the question of mesne profits, past and future, we direct that the same shall be ascertained by the trial court after enquiry under Order 20, Rule 12 of the Civil Procedure Code. The plaintiffs shall be entitled to their costs in this appeal.