@ Dorji & Ors Vs. C. Nagaraju & Ors  INSC 891 (5 August 1996)
K.Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (7) 638 1996 SCALE (6)162
O R D
have heard learned counsel on both sides.
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.
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.
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 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.
appeal is accordingly allowed. No costs.