V. R. NEWASKAR, J.

( 1 ) THE only question Involved in this second appeal as regards the legitimacy of the defendants.

( 2 ) PLAINTIFFS Rewaram and Moolchand brought the pre-sent suit for a declaration that the defendants Ramratan jagannath and Bapu are not the legitimate sons of their father Balwant. The defendants denied the plaintiffs assertion and contended that they are the legitimate sons of Balwant. The controversy arose when on balwant's death the question of mutation of the lands standing in his name arose. Rewaram and Moolchand Submitted a petition before the Revenue Court alleging that they alone are the legitimate sons of Balwant and that their names should be mutated In place of deceased Balwant. This petition of Rewaram and Moolchand was opposed by Ramratan, Jagannath and Bapu claiming themselves to be the legitimate sons of Balwant. The revenue Courts upheld the contention of the latter three and directed the names of all the five to be mutated. Rewaram and moolchand feeling aggrieved by the decision of the Revenue Courts filed the present suit for declaration as indicated above.

( 3 ) THE two courts below on evidence found that Ramratan, Jagannath and Bapu were born of one Kunwarbai who was living with Balwant for over 30 years as his wife and that the three defendants were born of the connection of Balwant and kunwarbai. It is not disputed on either side that Rewaram and Moolchand are the sons of legally married wife of Balwant namely Sonibai. The Courts below also have found that when Kunwarbai came to reside with Balwant her former husband was alive and that he raised no protest and is said to have taken no proceedings for the co-habitation of Balwant and Kunwarbai. It was also found by the Courts below that amongst the Khatis, to which community the parties belong, Natra form of marriage is possible even where the former husband is alive. The dissolution takes place in different shapes. Either the former husband is paid some Zagada money or he does not care to ask for any. It was also found that the plaintiff rewaram himself had contracted a marriage of that sort On the basis of long cohabitation of Balwant and Kunwarbai as husband and wife and by reason of the presumption arising due to possibility of a valid Natra form of marriage the two courts below drew a presumption that Kunwarbai was a legally married wife of balwant and consequently treated Ramratan, Jagannath and Bapu as the legal heirs of Balwant. In this second appeal the propriety of the presumption thus drawn is challenged.

( 4 ) IT is contended by Mr. D. G. Bhalerao for tne appellants that in view of the clear proof of the circumstance that Kunwarbai's former husband was alive when she began to live with Balwant presumption as to validity of marriage between them could not have been drawn.

( 5 ) I am unable to accept the contention of the learned counsel. In Mulla's Hindu law at page 616 it is stated on this subject as follows:

"similarly, the fact that a woman was living under the control and protection of a man who generally lived with her and acknowledged her children raises a strong presumption that she is the wife of that man. But this presumption may be rebutted by proof of facts showing that no marriage could have taken place. "( 6 ) THIS question as regards the manner and extent of presumption in cases of long co-habitation between a man and woman has been considered by the Madhya bharat High Court in a case reported in Bahadursingh v. Kartarsingh, AIR 1950 madh-B. 1. The facts in that case were some what similar although the parties there were Sikhs. The learned Judges held that where during the life time of her former husband a woman lived with another man and the former husband did not move a little finger of his to set her restored to him either by action for restitution of conjugal rights or in criminal proceedings for adultery this indicated a conduct that the former husband had repudiated and a divorce between the woman and the f

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