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PETITIONER: SRI CHOWDEGOWDA @ DORJI [ DEAD ] BY LRS. & ORS

       Vs.

RESPONDENT: C. NAGARAJU & ORS.

DATE OF JUDGMENT:       05/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (7)   638        1996 SCALE  (6)162

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      Since this is a long drawn litigation for over 37 years we think  it appropriate to give quick end to the litigation instead of  remanding the  matter  to  the  High  Court  for further remanding  it to  the appellate  Court. It is not in dispute  that   Machine  Chowdegowda,   the  father  of  the appellant had  three brothers. The suit came to be filed for partition of  10 acres  of wet land, 5.30 acres of dry land, 30 gunthas  of house  site into  four equal  parts and 1/8th share towards  the appellant-plaintiff. At three stages, the suit came  to be  dismissed and  ultimately  in  the  second appeal No.204/94,  by judgment  and decree  dated March  17, 1995 the  High Court of Karnataka confirmed the dismissal of the suit. Thus this appeal by special leave.      There is  evidence in  this case Exs. P-1, P-4 and P-36 which would  indicate that Machine Chowdegowda had described the appellant  to  be  the  son  born  to  his  first  wife, Siddamma. It  is seen that there is a controversy as regards the factum  of  the  customary  marriage  by  name  Kuduvali marriage which  seems to  have taken  place in  early  1920. Under those  circumstances, at  the distance  of 40 years it would be  difficult to  prove with  certainly of evidence of the factum  of the marriage etc. But the meat of the fact is that Siddamma and Machine Chowdegowda lived together as wife and husband  and the appellant came to be born from the wed- lock. Under  those circumstances,  the presumption  of valid marriage and  as to  appellant having been born legitimately out of  the that  marriage through Machine Chowdegowda could be drawn.  This is  the legal position settled by this Court In Badri  Prasad v. Deputy Director of Consolidation [(1978) 3 SCC  527], Sumitra  Devi v. Bhikan Choudhary [(1985) 1 SCC 637] and  S.P.S. Balasubramanyan v. Suruttayan [(1994) 1 SCc 460]. The  appellant must,  therefore, be  presumed to  be a legitimate son  of  machine  Chowdegowda.  Accordingly,  the

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appellant is  granted one  acre of the wet land and the rest of the  land will  be given to the respondents according tot he respective  shares. A  preliminary decree be drawn and an application to  pass final  decree be made and dealt with by the trial Court.      The appeal is accordingly allowed. No costs.