The legal presumption in favor of marriage and the inadmissibility of evidence without pleaded particulars of fraud are crucial considerations in determining the validity of a marriage and a gift.

S. K. RAY, J.

( 1 ) THIS second appeal is by the plaintiff from the reversing decision of the lower appellate court. The plaintiff's suit for declaration of his title and for partition is based on the following allegations : one Kurup Jena had 0. 97 decimals of land of which 0. 73 decimals are homestead. Defendant 1 is his daughter, and defendant 2 is his wife in 'thain' form. Kurup gifted 0. 24 decimals out of his lands to defendant 2 under Ext. 2, deed of gift, dated 9-4-58. This was with the consent of defendant 1. Kurup died thereafter. Balance 0. 73 decimals of Kurup were inherited by defendants 1 and 2 as simultaneous heirs having equal shares therein. So defendant 2 became owner of sixty decimals and five kadis, 24 decimals being under the deed of gift, and 35 decimals and five kadis by inheritance. Defendant 2 sold 0. 58 decimals out of it to plaintiff by Ext. 1, dated 7-1-59. These 0. 58 decimals comprised 0. 11 decimals of homestead. The plaintiff came to court for partitioning his 058 decimals against defendants 1 and 2. Defendant 2 remained ex parte. The suit was contested only by defendant 1.

( 2 ) DEFENDANT 1 denies that Kurup gifted any property to defendant 2, and that there was no relationship of husband and wife between Kurup and defendant 2. Her case is that defendant 2 was a concubine of Kurup. In the alternative she prays for relief under Section 4 of the Partition Act.

( 3 ) THE trial court found that the gift was valid and that there was marriage between defendant 2 and Kurup. He, therefore, decreed the plaintiff's suit for declaration of title and partition but he also held that defendant 1 is entitled to the relief under Section 4 of the Partition Act.

( 4 ) THE lower appellate court held that there was no valid gift because it was affected by fraud. He also negatived the marriage of defendant 2 with Kurup. As a consequence of these findings he held that defendant 2 conveyed no title to the plaintiff under her sale-deed, Ext. 1, and dismissed the suit.

( 5 ) THE first point raised is that the lower appellate court's finding that there was no marriage between defendant 2 and Kurup cannot be upheld for the following reasons, viz. , (a) he has failed to use the legal presumption in favour of marriage; (b) He has totally omitted to consider the evidence of P. W. 1 who is a witness to the marriage. This omission amounts to non-consideration of essential evidence; and (c) He has discarded the testimony of P. W. 2 who is a caste-Behera on two untenable grounds, that is to say, this P. W. 2 has kept a concubine, and that he was not summoned. The second point urged by learned counsel for the appellant is that the finding that the gift is affected by fraud is unsustainable in law, because in absence of particulars of fraud being pleaded no evidence of fraud should have been allowed, and if allowed should not have been considered. The ground for rendering a finding that the gift was affected by fraud is that the donor was suffering from cancer at the time. There is no evidence of cancer except the evidence of the Sub-Registrar. 5a. I will now consider the points seriatim. It has been laid down by the Privy council in the case of Mohabbat Ali Khan v. Mohammad Ibrahim Khan, AIR 3929 pc 135, that the law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years. The Supreme Court also has said to the same effect in the case of Golak Chand v. Parvin Kumari, AIR 1952 SC 231. It has been said there :-"continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them. " there is evidence on behalf of the defendants that defendant 2 was in continuous exclusive keeping of Kurup. This evidence gives rise to the legal pr