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CASE NO.: Appeal (civil)  648 of 2002

PETITIONER: Tulsa & Ors.

RESPONDENT: Durghatiya & Ors.

DATE OF JUDGMENT: 15/01/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment rendered by a  learned Single Judge of the Madhya Pradesh High Court at  Jabalpur.  The appeal under Section 100 of the Code of Civil  Procedure, 1908 (in short the \021Code\022) was directed against the  judgment and decree dated 29.10.1988 passed by learned IInd   Additional District Judge, Satna in Civil appeal No. 138-A of  1987.  The appeal before the First appellate court was directed  against the judgment and decree dated 26.4.1985 passed by  learned Second Civil Judge Class I, Satna in Civil Suit No. 52- A of 1982.  The suit was filed by the respondents herein for  nullifying and setting aside sale deed dated 10.9.1980 and  also for permanent injunction of land at Sl. Nos. 4009, 4010,  4011 and 4014. The sale deed dated 10.9.1980 was in respect  of lands at Sl. Nos. 3853, 3993, 4002, 4003, 4004, 4009.  4010, 4014, 4015 and 4021 of Mauza Nayagaon, Tehsil  Raghurajnagar, District Satna.  According to them the  disputed property is the joint ancestral property of Radhika  Singh, Sunder Singh and the husband of plaintiff No.1, Dadau  Singh who was the father of the other two plaintiffs -  Smt.  Rani and Smt. Butan.  Vansh Gopal had three sons, Radhika  Singh, Sunder Singh and Dadau Singh. Sunder died without  any legal heir. No partition had taken place between Radhika  and Sunder and Radhika, Sunder and Dadau all used to do  cultivation jointly.  As Radhika and Sunder died without  leaving legal heirs, the plaintiffs became the sole owners of the  property. Loli, the original defendant No.1 is the wife of Mangal  Kachhi and his daughter Tulsa Bai, the present appellant was  born to Loli and Mangal Kachhi. After the birth of her  daughter Tulsabai, deceased Radhika Singh, kept defendant  No.1 as a mistress in his house and left for somewhere else  taking her along and came back after many years.  She gave  birth to three daughters namely Vidya, Badaniya and  Rajaniya.  Defendant No.1 was a Kachhia by caste and was  also the cognitive of deceased Radhika, so she had no legal  rights in the property. After the death of Radhika, Defendant  No.1 was residing with Badri Prasad Pandey.  Badri Prasad got  sale deed executed in favour of defendant No.1 of disputed  property with intention to usurping the land.  Plaintiffs are in  possession.  They came to know about the transaction when  defendant Nos.2 to 4 submitted an application for transfer of  land in their names and then it came to light that defendant  No.1 had no title over the land and the land was in possession

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of plaintiffs 1 to 3. On 17.12.1984 plaintiffs got the  information that the defendant Nos.2 and 3 have got their  names mutated in respect of certain lands, therefore the suit  was filed.  In the written statement filed the defendants took  the stand that the family tree indicated by the plaintiff was   correct. Out of the land 12 acres owned by the family of  Durghatiya, the plaintiff No.1 had sold her share of land.    About 30 years back partition has taken place between Dadau  and Sunder.  Dadau had separated after taking his share.  He  got the land in certain villages. Radhika and Sunder used to  live jointly and used to do cultivation over the land which they  got in partition.  They died while living jointly in the year 1970.   Plaintiff-Durghatia and Radhika had sold their land in the  capacity of owners during their lifetime.  Sunder did not marry  and had no issue. Defendant No.1 is the widow of Radhika.  They were blessed with five daughters and one son, out of  which one son and one daughter died.  The eldest daughter  Tulsa and the younger daughter were given in marriage by  Radhika.  Plaintiff No.1 used to regard defendant No.1 as her  jethani.  Radhika and defendant No.1 lived together for thirty  years as husband and wife and, therefore, she had legitimate  claim over the property as his wife.  It was also disputed that  defendant No.1 was living with defendant Nos.2 to 5.   Defendant No.1 had sold the lands to defendant Nos.2, 3 and  4 had also given possession. Defendant No.1 had taken a debt  on the marriage of her son and for that purpose she sold the  land.  She claimed that she had right to sell the land and  therefore no question of having any illegal possession.  Four  issues were framed by the trial court and the important and  vital issue was framed as issue No.2 which read as follows :

    \023Whether the defendant No.1 was the wife  of Radhika Singh\024?       The question was answered in the affirmative.  After referring  to the evidence of the witnesses examined by the plaintiffs as  well as the defendants, the trial court held that there was no  merit in the suit and accordingly it was dismissed.  The  judgment and decree were questioned in appeal before the first  appellate court.        2.      As noted above, the first appellate court allowed the  appeal.  The trial court noted that there was a presumption of  valid marriage, as for decades Radhika and plaintiff No.1 lived  together, their daughters were given in marriage by Radhika.   Loli the defendant No.1 was earlier married to Mangala Kochhi  and after his death she married Radhika.  It is to be noted that  the stand of the plaintiffs was that Loli married Radhika  during the lifetime of Mangal Katchhi.  The trial court rejected  this plea.  The first appellate court observed that Loli started  living with Radhika during the life time of Mangal Katchhi, so  the presumption of valid marriage was not there. The  judgment and decree of the first appellate court was  challenged before the High Court.  The High Court formulated  the following questions for adjudication:

\023Whether in the facts and circumstances of  the case, the first appellate Court erred in law  in finding that Mst. Lollibai was not the  legally married wife of Radhika Singh?\024

     3.      After discussing the respective stand of the parties, the  High Court came to a somewhat peculiar finding. It held that  the findings recorded by the appellate court may be erroneous,

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but it does not appear to be perverse.       4.      It is to be noted that the first appellate court without any  evidence or material came to an abrupt conclusion that the  defendant No.1 Loli started living with Radhika during the  lifetime of her husband.  There is no discussion with reference  to any material as to the basis for such a conclusion.   

5.      Some of the conclusions of the trial court in this regard  are relevant.  In paragraph 16 of the judgment it was noted as  follows:            \023In the content of the aforesaid judgment,  now we have to examine this that whether we  have sufficient basis to make a presumption of  legal marriage of Lolli and Radhika Singh.  In  this connection, plaintiff witness Visheshar  had admitted in para 9 of his statement that  there were four daughters and one son born of  Lolli and Radhika Singh.  The eldest daughter  of Lolli is Tulsi.  Rani was born to Lolli after 2- 3 years of her arriving in the village.  Three of  the daughters of Lolli was married off by  Radhika Singh and she had also contributed.\024                   6.      Again at para 18 it was observed as follows:            \023Witness Devdhari has also admitted in  his statement that after 2-3 years of the birth  of first born Bhaiyalal Mangal Kachhi had  died.  Lolli used to work as a labourer.  She  also used to be labourer with Radhika Singh.    Radhika Singh had retained Lolli as his wife.   The daughters of Lolli were married off by  Radhika Singh.  Ram Milan Singh had  admitted in his statement that all these four  daughters were alive.  They were born of  Radhika and Lolli.  The daughters which were  born of Radhika Singh, their Kanyadan was  also performed by Radhika Singh.  He has also  admitted this in his statement that Radhika  Singh had married off his daughters as  Vaishyas and Thakurs married off their  daughters.  He had attended the marriage.\024             7.      In para 24 it was observed as follows:                  \023This has also been argued by learned  counsel of the plaintiff that even if this is  accepted that Lolli and Radhika Singh stayed  as husband and wife for many days and they  were blessed with children even then it cannot  be presumed that Lolli is legitimate wife of  Radhika Singh.  Because Lolli moved in with  Radhika Singh then her husband had been  alive.  His former husband Mangal Kachhi had  been alive, till she got divorce by Mangal  Kachhi till then Lolli could not have entered in  second marriage with Radhika Singh.  I am no  in agreement with this argument of the learned  counsel of the plaintiff because the evidence,

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which has been adduced from the side of the  plaintiff and defendants, from that it becomes  clear, that after Bhaiyalal was born to Lolli  from mangal, mangal had thrown Lolli out of  the house.  Then Lolli worked as a casual  labourer for some time and meanwhile Mangal  had died.  Thereafter Radhika Singh adopted  her as his wife.  This fact has been admitted by  Devdhari in para 4 of his statement that Lolli  used to frequent village Bointa from Bandhi to  work as a labourer, thereafter she was  adopted.\024                         8.      In contrast, the first appellate court held that Bhaiyalal  (DW2) who was born to Lolli and Mangal, had stated that he  was very young when his father died and when he was young  his mother had left.  From that it was inferred that during the  lifetime of Mangal Katchhi, Lolli left the Mangal and was living  with Radhika. This conclusion is clearly contrary to the  evidence on record.  A bare reading of the evidence of DW 2  shows that he had clearly stated that Mangal was not alive  when Lolli came and stayed with Radhika.   

9.      At this juncture reference may be made to the Section  114 of the Indian Evidence Act, 1872 (in short the \021Evidence  Act\022).  The provision refers to common course of natural  events, human conduct and private business.  The court may  presume the existence of any fact which it thinks likely to have  occurred.  Reading the provisions of Sections 50 and 114 of  the Evidence Act together, it is clear that the act of marriage  can be presumed from the common course of natural events  and the conduct of parties as they are borne out by the facts of  a particular case.       10.     A number of judicial pronouncements have been made  on this aspect of the matter.  The Privy Council, on two  occasions, considered the scope of the presumption that could  be drawn as to the relationship of marriage between two  persons living together.  In first of them i.e. A. Dinohamy v.  W.L. Blahamy [AIR 1927 P.C. 185] their Lordships of the Privy  Council laid down the general proposition that:            \023Where a man and woman are proved to  have lived together as man and wife, the law  will presume, unless, the contrary be clearly  proved that they were living together in  consequence of a valid marriage, and not in a  state of concubinage.\024       11.     In Mohabhat Ali v. Md. Ibrahim Khan [AIR 1929 PC 135]   their Lordships of the Privy Council once again laid down that:            \023The law presumes in favour of marriage  and against concubinage when a man and  woman have cohabited continuously for  number of years.\024       12.     It was held that such a presumption could be drawn  under Section 114 of the Evidence Act.       13.     Where the partners lived together for long spell as  husband and wife there would be presumption in favour of

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wedlock.  The presumption was rebuttable, but a heavy  burden lies on the person who seeks to deprive the  relationship of legal origin to prove that no marriage took  place.  Law leans in favour of legitimacy and frowns upon  bastardy. (See: Badri Prasad v. Dy. Director of Consolidation  and Ors. [AIR 1978 SC 1557].       14.     This court in Gokal Chand v. Parvin Kumari [AIR 1952  SC 231] observed that continuous co-habitation of woman as  husband and wife and their treatment as such for a number of  years may raise the presumption of marriage, but the  presumption which maybe drawn from long co-habitation is  rebuttable and if there are circumstances which weaken and  destroy that presumption, the Court cannot ignore them.       15.     As noted above, the continuous living together of Lolli  and Radhika has been established.  In fact the evidence of the  witnesses examined by the plaintiff also established this fact.   The conclusion of the first appellate court that they were living  together when Mangal was alive has not been established.  The  evidence on record clearly shows that Lolli and Radhika were  living together after the death of Mangal.  

16.     Above being the position, the appeal deserves to be  allowed which we direct. The judgment and decree of the first  appellate court and the High Court are set aside and those of  the trial court stand restored.        17.     Appeal is allowed but with no order as to costs.