Evidence Act, 1872 – s.114 – Share in coparcenary property – Partition suit filed by appellants-plaintiffs claiming half share in the coparcenary property – Respondents-defendents challenged the marriage of the first plaintiff ’s parents i.e. ‘D’ and ‘C’ and also contended that plaintiff no.1 is not the son born out of the said wedlock – Trial Court upheld the validity of marriage of first plaintiff ’s parents and held that plaintiff no.1 is son born out of said wedlock and passed preliminary decree for partition of the suit property – Appeal filed by respondent before High Court – High Court held that plaintiff no.1 is son of ‘D’ but not a legitimate one and thereby denied partition of the property – Before the Supreme Court, appellants contended that as per s. 114 IEA, long course of living together between a male and female will raise a rebuttable presumption of marriage between them and the children born in such relationship are considered to be legitimate children – Held: From the documents on record coupled with the evidence of PW-2, would show that there was long duration of cohabitation between parents of plaintiff no. 1 – Though the presumption of s.114 IEA is rebuttable, heavy burden lies on him who seeks to rebut the presumption – The respondents have failed to rebut the presumption of marriage raised as per s. 114 IEA – Therefore the judgment of the trial Court is upheld – As far as issue of delay in initiating final decree proceedings u/Or. XX, r.18 of the CPC is concerned, the trial Courts directed to list the matter for taking steps u/Or. XX Rule
18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings – Code of Civil Procedure,1908 – Or. XX, r. 18.
Allowing the appeals, the Court
HELD: 1. It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place. [Para 15][1126-E]
2. The plaintiffs have produced the birth certificate of the first plaintiff as Ex.A-9. As per this document, the date of birth of the first plaintiff is shown as 12.05.1942. K.E. ‘D’ and ‘C’ are described as father and mother. [Para 23][1128-C]
3. There are also enough materials on record to show that ‘C’ was getting some money from the family of ‘D’, including in particular the letters at Exs.A22 and A23, which were addressed to the first plaintiff by his mother ‘C’ long back in the year 1976. [Para 25][1129-C-D]
4. The first plaintiff was born on 12.05.1942 as is evident from Ext.A9. The documents produced by the plaintiffs were in existence long before the controversy arose between the parties. These documents, coupled with the evidence of PW-2, would show the long duration of cohabitation between ‘D’ and ‘C’ as husband and wife. The first plaintiff joined military service in the year 1963 and retired in the year 1979. Thereafter he has taken the steps to file a suit for partition of the suit schedule property. [Para 26][1130-B-D]
5. This Court also perused the evidence of the defendants. This Court is of the view that the defendants have failed to rebut the presumption in favour of a marriage between ‘D’ and ‘C’ on account of their long co-habitation. [Para 27][1130-D-E]
6. Once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. [Para 33][1135-A-C]
Badri Prasad v. Dy. Director of Consolidation and Others (1978) 3 SCC 527: [1979] 1 SCR 1; S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and Others (1994) 1 SCC 460; Tulsa and Others v. Durghatiya and Others (2008) 4 SCC 520 : [2008] 1 SCR 709; Challamma v. Tilaga and Others (2009) 9 SCC
299 : [2009] 11 SCR 831; Madan Mohan Singh and Others v. Rajni Kant and Another (2010) 9 SCC 209 : [2010] 10 SCR 30; Indra Sarma v. V.K.V. Sarma (2013)
15 SCC 755 : [2013] 14 SCR 101920 – relied on. Shub Karan Bubna v. Sita Saran Bubna (2009) 9 SCC
689 : [2009] 14 SCR 40; Bimal Kumar and Another v. Shakuntala Debi and Others (2012) 3 SCC 548 : [2012]
2 SCR 195 – referred to.
Andrahennedige Dinohamy and Anr. v. Wijetunge Liyanapatabendige Balahamy and Ors. AIR 1927 PC 185; Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR 1929 PC 135 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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