Summary
In a partition suit over property of a Thiyya family of Calicut governed by Mitakshara law, the plaintiffs claimed through Damodaran, one of four brothers, asserting that he had married Chiruthakutty in 1940 and that the first plaintiff was born of that union in 1942. The defendants said Damodaran died a bachelor. The trial court found long cohabitation, presumed a valid marriage and decreed a half share; the Kerala High Court, after an earlier remand was set aside by the Supreme Court, held the first plaintiff to be Damodaran's son but illegitimate for want of proof of marriage and dismissed the suit. The Supreme Court restored the trial court's decree.
Issues
- Whether long cohabitation of a man and a woman as husband and wife raises a presumption of valid marriage so as to make a son born of the relationship a legitimate coparcener entitled to partition, and on whom lies the burden of rebutting it.
- Whether, after a preliminary decree in a partition suit, the trial court should await a separate application for final decree or proceed suo motu under Order XX Rule 18 CPC.
Provisions considered
- Section 114, Indian Evidence Act, 1872A strong presumption of wedlock arises from long cohabitation as husband and wife; the law leans in favour of legitimacy and frowns on bastardy (Andrahennedige Dinohamy, Mohabbat Ali Khan, Badri Prasad, S.P.S. Balasubramanyam). The documents produced, predating the controversy, together with the neighbour's evidence, proved the cohabitation, and the defendants failed to rebut the presumption. (¶¶ 15, 16, 17, 18, 19, 26, 27)
- Section 2(2) and Order XX Rule 18, Code of Civil Procedure, 1908A preliminary decree declares shares and leaves the actual division to a further inquiry culminating in a final decree; there being no limitation for final decree proceedings, litigants delay them. Trial courts are directed to list the matter for steps under Order XX Rule 18 suo motu soon after the preliminary decree, without adjourning sine die or requiring separate proceedings. (¶¶ 29, 30, 31, 32, 33, 34)
Held
- The birth certificate naming Damodaran and Chiruthakutty as parents, the son's trade and military discharge certificates and SSLC book, the 1970 voters' list and electoral cards describing Chiruthakutty as Damodaran's wife, her death certificate and the newspaper obituary of 'Chiruthakutty, wife of Kattukandy Edathil Damodaran', and her 1976 letters showing she received money from the family, all came into existence long before the dispute and, with the neighbour's evidence of the marriage, show long cohabitation as husband and wife. (¶¶ 22, 23, 24, 25, 26)
- The defendants failed to rebut the presumption of marriage arising from long cohabitation, so the High Court was not justified in setting aside the trial court's decree treating the first plaintiff as a legitimate son entitled to a half share. (¶¶ 27, 28)
- Following Shub Karan Bubna, the practice of declaring rights in a preliminary decree and then requiring separate proceedings for the final decree only delays the fruits of the decree; once a preliminary decree is passed the court must itself list the suit for drawing up the final decree, and the Registry is to circulate this direction through the High Courts to all trial courts. (¶¶ 32, 33, 34)
Result
Appeals allowed; the Kerala High Court's judgment of 05.02.2009 in A.S. Nos. 102 and 107 of 1996 set aside and the trial court's preliminary decree for partition allotting the plaintiffs a half share restored; parties to bear their own costs; trial courts directed to take up final decree proceedings suo motu after passing a preliminary decree.