1987 Supreme(Mad) 301

I 1990 DMC 257
Sathiadev, Sivasubramaniam
Mohan And Anr.
Versus
Santha Bai Ammal And Ors.
Decided on: 10/9/1987
.

The presumption of marriage arising out of long cohabitation as husband and wife does not arise when there is overwhelming evidence to show that the woman was living with the man only as his concubine.

Headnote:

HINDU MARRIAGE ACT - SECTION 16 - LEGITIMACY OF CHILDREN OF VOID AND VOIDABLE MARRIAGES - APPLICABILITY - MARRIAGE - VALIDITY - BURDEN OF PROOF - PRESUMPTION OF MARRIAGE FROM COHABITATION - REBUTTAL - REGISTERED DOCUMENTS DESCRIBING WOMAN AS CONCUBINE - EFFECT.

Fact of the Case:

Plaintiffs filed a suit for partition and separate possession of their 2/9th share in the suit properties and for future mesne profits. The material averments in the plaint were that the properties described in the A and B schedules to the plaint were the absolute properties of Subbarayalu Naidu who died on 11-5-1978. The first defendant is his first wife. The defendants 2 and 3 are his sons and defendants 4 to 7 are his daughters. The plaintiffs 1 and 2, are the sons of Subbarayalu through his second wife Drowpathi. The marriage of Drowpathi, the mother of the Plaintiffs, with Subbarayalu took place at Thiruvendipuram in Devanatbaswami temple on 13-7-1952. The certified copy of the extract maintained by the Devasthanam is produced along with the plaint to show date of marriage. The first defendant resisted the suit and filed a written statement raising the following contentions:- Subbarayalu Naidu never married Drowpathi and no such marriage took place. This defendant denies the extract given by the Devasthanam as true and genuine. Subbarayalu Naidu married only one wife. This defendant is the only legally wedded wife of Subbarayalu Naidu. The defendants 2 and 3 are her sons and defendants 4 to 7 are her daughters. The plaintiffs' mother Drowpathi was never living at panruti. This defendant learns that Drowpathi was working as a teacher at Cuddalore. Subbarayalu Naidu was doing business in partnership with one Sivanesa Pathar. Sivanesa Pathar had married Drowpathi's younger sister. Subbarayalu Naidu used to visit Sivanesa Father's house. While so, the said Drowpathi got into illicit intimacy with Subbarayalu Naidu Drowpathi was also having illicit intimacy with other people. This defendant denies that the plaintiffs are the heirs of Subbarayalu Naidu. Subbarayalu Naidu was having illicit intimacy with Drowpathi for sometime. The Plaintiffs are not entitled to succeed to the estate of Subbarayalu Naidu. Subbarayalu Naidu was threatened that Court proceedings would be taken. Hence on 9-3-1959, he executed a settlement deed of the house bearing Door No. 5 Anaikkaran Street, Tiruppapuliyur in favour of the Plaintiffs. The plaintiffs' mother accepted the settlement deed as guardian and took possession on the same day. The plaintiffs' mother for herself and as guardian of the plaintiffs had executed a release deed in favour of Subbarayalu Naidu. Under that document, she relinquished all her rights in properties. The consideration for the release is the settlement of the house in favour of the plaintiffs/and their mother. The said release is valid and binding upon the plaintiffs and they are estopped from contending that their mother is the legally wedded wife. The said Drowpathi has been living with various people and this defendant learns that subsequent to the release deed, she has begotten, a child. The trial court framed a number of issues and additional issues arising out of the pleadings of the parties and dismissed the suit holding that the marriage of the plaintiffs' mother Drowpathi with Subbarayalu Naidu is not true, that the first defendant is entitled to A schedule items 24 to 29 and that the third defendant is not entitled to items 12 to 19.

Finding of the Court:

The court found that there was no valid marriage between the plaintiffs' mother and late Subbarayalu Naidu and that they are not entitled to any benefit under S. 16 of the Hindu Marriage Act. Therefore, the plaintiffs are not entitled to succeed to any of the properties of late Subbarayalu Naidu.

Issues: 1. Whether the marriage of the Plaintiff's mother Drowpathi with Subbarayalu Naidu on 13-7-1952 is true and valid? 2. Whether the plaintiffs are entitled to succeed to properties of the deceased Subbarayalu Naidu? 3. What are the properties to which the plaintiffs are entitled?

Ratio Decidendi: 1. The burden of proof is on the plaintiffs to show that their mother Drowpathi was the legally wedded wife of late Subbarayalu Naidu and that they are his legitimate sons entitled to succeed to his properties. 2. The plaintiffs have failed to prove the factum of the marriage which is being seriously disputed by the defendants. 3. The plaintiffs' mother has admitted that when she married Subbarayalu Naidu, he had wife living who is the first defendant in this case and that he had begotten three daughters through the first defendant, at that time. 4. The plaintiffs have failed to produce a copy of the marriage register maintained by the temple authorities. 5. The plaintiffs' mother was examined as P.W. 2 in the suit and she admitted that when she married Subbarayalu Naidu, he had wife living who is the first defendant in this case and that he had begotten three daughters through the first defendant, at that time. 6. The plaintiffs' mother has also admitted that she was fully aware that Subbarayalu Naidu had already married and had children through his first wife. 7. Nobody, who had attended the alleged marriage, has been examined in this case to corroborate the evidence of P Ws. 2 and 3. 8. The evidence of P.Ws. 2 and 3 is contradictory on the aspect of the actual form of marriage in which the marriage of P.W. 2 had taken place in the temple. 9. The plaintiffs have not chosen to file such a marriage invitation nor was there any attempt on their part to summon anybody who had received such an invitation from late Subbarayalu Naidu or from P.W. 2. 10. There are two clinching registered documents which would go to show that there could not have been such a valid marriage as alleged by the Plaintiffs in this case. 11. In Ex. B2, P.W. 2 has been described as the daughter of Parvathi Ammal and not as the wife of Subbarayalu Naidu. 12. In Ex. B2, P.W. 2 has described herself only as the (In vernacular) which means only the wife of affection. 13. The presumption of marriage arising out of long cohabitation as husband and wife does not arise in this case.

Final Decision: The appeal is dismissed with costs.