Balasubramanyam Vs. Suruttayan  INSC 436 (13 October 1993)
R.M. (J) SAHAI, R.M. (J) PANDIAN, S.R. (J) CITATION: 1994 AIR 133 1994 SCC (1)
460 JT 1993 (6) 495 1993 SCALE (4)192
Judgment of the Court was delivered by R.M. SAHAI, J.- The short question that
arises for consideration in this plaintiff's appeal directed against the
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
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.
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
first 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 vest in him
under deed of settlement executed by his father in 1968.
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.
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 at 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 Appellate
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 PW 6 and DW 4 in support of the conclusion that no 462 legal
marriage had come into being between Chinathambi and Pavayee No. 2.
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 Kumari1). 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
executed by the father-in-law could not destroy the presumption which otherwise
arose in law.
Hindu society no father would, normally, tolerate behaviour of his son of
having a concubine, therefore, the mere fact that Manthi while executing the
will did not mention the name of Pavayee No. 2 or her offspring was of no
consequence. Similarly the absence of any reference to Pavayee and her children
in the compromise entered into between Chinathambi and his brothers was totally
irrelevant circumstance. The suit was filed for partition by one of the members
of joint Hindu family for his share on strength of will executed by his father.
Since his children were not given any share by his father they could not have
been party either in the suit or in the compromise decree. The absence of their
name therefore could not be taken adversely for destroying the presumption. As
regards evidence of PW 6 or DW 4 their depositions are on record. It does not
indicate that they stated that Chinathambi and Pavayee did not live together.
Since it was not disputed that Ramaswamy was born of Chinathambi and Pavayee
who lived together as husband and wife since 1920 each of these circumstances
was irrelevant and could not have resulted in rebutting the presumption.
opinion the High Court was not justified in interfering with the findings of
fact recorded by the First Appellate Court arrived at after appreciating the
evidence on record.
order to overcome the difficulty it was vehemently argued by the learned
counsel for respondent that even if it is assumed that Pavayee was living with.
Chinathambi since 1920 there being evidence on record to establish that her
husband was alive when she came to live with Chinathambi, she was leading an
adulterous life and no law recognizes such relationship as valid, consequently
the presumption, if any, in favour of a legal marriage stood rebutted. Reliance
has been placed on observations made in the judgments at various places and
even the statement of Pavayee herself that she had left her husband and had
come to live with Chinathambi. It appears unnecessary to express any opinion as
to whether the relationship between Chinathambi and Pavayee was adulterous and
if it was sufficient to 1 AIR 1952 SC 231: 1952 SCR 825 463 destroy the
presumption in law as this plea does not appear to have been raised in the
written statement nor any issue was framed on it nor any of the courts have
recorded any finding on it.
regards the deed of settlement executed by Chinathambi it having been found
that Chinathambi got his share by way of partition decree, the ancestral or coparcenary
nature of property came to an end and Chinathambi became its exclusive owner.
Consequently he could execute a deed of settlement in favour of his wife and
children. Since Ramaswamy derived his title from the settlement deed it was
valid and he could convey his interest in favour of the appellant.
the result this appeal succeeds and is allowed. The judgment and decree of the
High Court is set aside and that of the First Appellate Court is restored. The
parties shall however bear their own costs.