Judgment

R. M. SAHAI, J.:- The short question that arises for consideration in this plaintiffs appeal directed against judgment and order of the Madras High Court allowing the appeal, setting aside the judgment and decree of the First Appellate Court restoring that of the trial Court and dismissing the suit of the appellant for declaration and possession over the land in dispute is if the High Court was justified in interfering with the presumption drawn by the Appellate Court of valid marriage arising out of prolonged living together of a man and woman as husband and wife.

2. Manthi, admittedly, had three sons one of them being Chinathambi. His legally wedded wife was one Pavayee. He also lived with another woman, whose name, too, was Pavayee. From the second Pavayee he had issues one of them being Ramaswamy. He sold his one third share, which he received from his father, in 1971 to the appellant. This was resisted by descendants of other two branches. The appellant therefore filed suit for declaration and recovery of possession. Two main questions arose one - if Ramaswamy was legitimate child of Chinathambi, second - the property being ancestral and coparcenary property bequeathed by Manthi in favour of his sons and grandsons but excluding Ramaswamy could any valid title 134 vest in him under deed of settlement executed by his lather in 1968.

3. The trial Court accepted the claim of defendants that Ramaswamy was an illegitimate child of Chinathambi as second Pavayee was only a concubine and not a legally wedded wife of Chinathambi. It was also found that the deed of settlement made by Chinathambi could not convey any right, title or interest in favour of Ramaswamy or his mother as it was in respect of coparcenary property or joint family property and, therefore, the deed of settlement was invalid. In appeal both the findings were set aside. The Appellate Court found that Chinathambi and Pavayee No. 2 having lived together as husband and wife since 1920 a presumption arose in law that they were husband and wife. The Appellate Court further found that in the compromise entered between the three sons of Manthi in the suit filed by Chinathambi there was a partition and the parties agreed that the compromise arrived by them may be given effect to without effecting any partition by metes and bounds as they were in possession of their separate share. It was, therefore, held that Chinathambi got exclusive right over his share under the compromise and he was entitled to execute the deed of settlement in 1968. In second appeal the presumption drawn by the Appel1ate Court was found to have been rebutted as if Pavayee No. 2 would have been the legally married wife of Chinathambi, her name or the name of her sons would have found mention in the will executed by Manthi, the father of Chinathambi. It was also found that when compromise was arrived between the members of the family on a suit filed by Chinathambi no reference was made either to Pavayee or to her offspring, namely, Ramaswamy. Reliance was also placed on the depositions of P.W. 6 and D.W. 4 in support of the conclusion that no legal marriage came into being between Chinathambi and Pavayee No. 2.

4. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable (see Gokal Chand v. Parvin Kumari, AIR 1952 SC 231). It has been found by all the Courts including the High Court that Chinathambi and Pavayee No. 2 lived together since long. But the High Court held that the presumption stood rebutted for reasons stated earlier. The question is if any of the circumstances taken individually or together were sufficient to warrant the finding that the presumption stood rebutted. Taking each one of them it may be stated that the omission to mention the name of a woman who was living as a concubine and her offspring in the will exe