In a very significant development, we saw how none other than the Apex Court itself has in an extremely learned, laudable, landmark and latest judgment titled Kattukandi Edathil Krishnan vs Kattukandi Edathil Valsan in Civil Appeal No.(s) 6406-6407 of 2010 and cited in 2022 LiveLaw (SC) 549 and pronounced as recently as on June 13, 2022 reiterated that long cohabitation between a man and women raises a strong presumption in favour of their marriage. The Bench of Apex Court comprising of Justice S Abdul Nazeer and Justice Vikram Nath observed that 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. The Court, on examining the documents and evidence on record, observed that the plaintiffs have proved long duration of cohabitation between Damodaran and Chirukutty as husband and wife. The Court noted that further, the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chirukutty on account of their long cohabitation.
The key points of this notable judgment are as follows:
- Partition Suits:
Trial Courts to list the matter for taking steps under Order 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. The courts should not adjourn the matter sine die. (Para 32-34).
- Indian Evidence Act, 1872; Section 114:
If a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. 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. Referred to Badri Prasad v. Dy. Director of Consolidation (1978) 3 SCC 527 et al. (Para 15 -20).
- Final decree proceedings can be initiated at any point of time:
There is no limitation for initiating final decree proceedings. Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose. By mere passing of a preliminary decree the suit is not disposed of. [Referred to Shub Karan Bubna v. Sita Saran Bubna (2009) 9 SCC 689; Bimal Kumar and Another v. Shakuntala Debi (2012) 3 SCC 548. (Para 31)].
At the outset, this simple, straightforward, stimulating and suave judgment authored by Justice S Abdul Nazeer for a Bench of Apex Court comprising of himself and Justice Vikram Nath sets the pitch in motion by first and foremost putting forth in para 1 that:
The instant appeals arise out of the judgment and decree dated 05.02.2009 passed by the High Court of Kerala at Ernakulam in A.S. No.102 of 1996(A) and A.S. No.107 of 1996 whereby the High Court has allowed the appeals and set aside the decree for partition passed by the Trial Court.
As we see, the Bench then states in para 2 that:
The appellants were the plaintiffs and Kattukandi Idathil Karunakaran was the defendant who died during the pendency of the suit. Therefore, his legal representatives were brought on record as defendants no.2 to 5. For the sake of convenience, the parties are referred by their respective ranking before the Trial Court.
On the one hand, the Bench mentions in para 3 that:
In the suit, the plaintiffs contended that the suit property belonged to one Kattukandi Edathil Kanaran Vaidyar who had four sons viz. Damodaran, Achuthan, Sekharan and Narayanan. The first plaintiff is the son of Damodaran, born in the wedlock with one Chiruthakutty, and the second plaintiff is the son of the first plaintiff. Achuthan had one son by name Karunakaran, the predecessor in-interest of the defendants. Sekharan was a bachelor and died without any issue. Narayanan married one Lakshmi and they had a daughter by the name of Janaki, who also died as a spinster. The plaintiffs claimed half share in the suit schedule property.
On the other hand, the Bench then notes in para 4 that:
It is the case of the defendants that all the children except Achuthan died as bachelors and Karunakaran is the only son of Achuthan. They denied the contention of the plaintiffs that Damodaran had married Chiruthakutty and that the first plaintiff was the son born to them in the said wedlock. Their further contention was that Chiruthakutty was not the wife of Damodaran. Thus, it was pleaded that the plaintiffs are not entitled for any share in the suit schedule property.
To put things in perspective, the Bench then envisages in para 5 that:
On the basis of the pleadings of the parties, the Trial Court framed relevant issues. The Trial Court on examination of the evidence on record held that Damodaran had a long co-habitation with Chiruthakutty and that due to such co-habitation, it could be concluded that Damodaran had married Chiruthakutty and that the first plaintiff was the son born in the said wedlock. The Trial Court accordingly passed a preliminary decree for partition of the suit property into two shares and one such share was allotted to the plaintiffs.
Truth be told, the Bench then discloses in para 6 that:
Aggrieved by the said judgment and decree, the first defendant filed an appeal, A.S. No.102 of 1996, and the other defendants filed another appeal A.S.No.107 of 1996 before the High Court. While the matter was being argued, yet another contention was put forward by the defendants that if the first plaintiff was born to Damodaran through Chiruthakutty, he could only be an illegitimate child. As long as the marriage between Damodaran and Chiruthakutty is not proved, the plaintiffs cannot claim the right over the coparcenary property. This plea of the defendants was without any pleading to that effect and no such contention was put forth by the defendants before the Trial Court.
As it turned out, the Bench then points out in para 7 that:
The High Court, on appreciation of the evidence on record, held that the first plaintiff was the son of Damodaran. However, the documents produced before the Court would not go to show that Damodaran actually married Chiruthakutty and that no presumption of a pre-existing valid marriage between Damodaran and Chiruthakutty could arise. The High Court opined that the position of the first plaintiff to be of an illegitimate child. That being so, the plaintiffs would not be entitled for a share in the coparcenary property since the marriage between Damodaran and Chiruthakutty was not a valid one. On the basis of this conclusion, the High Court remitted the matter back to the Trial Court for fresh consideration. The Trial Court permitted the parties to adduce additional evidence and, if necessary, to amend the pleadings so as to consider the factum of marriage.
Furthermore, the Bench then reveals in para 8 that:
The plaintiffs challenged the above order of remand before this Court and this Court allowed the appeals by setting aside the order of remand with a direction to the High Court to decide the appeals on the basis of the evidence on record.
While continuing in same vein, the Bench then states in para 9 that:
The High Court, thereafter, heard the appeals and allowed the same by holding that there is no evidence to establish the long cohabitation between the father and the mother of the first plaintiff and the documents only proved that the first plaintiff is the son of Damodaran, but not a legitimate son, thereby denied partition of the property. As noticed above, this judgment of the High Court is under challenge in these appeals.
Needless to say, the Bench then says in para 13 that:
We have carefully considered the submissions made at the Bar by learned senior counsel for the parties and perused the materials placed on record.
No doubt, the Bench then rightly observes in para 14 that:
It is not disputed that the suit property belongs to one Kattukandi Edathil family which is a Thiyya family of Calicut governed by the Mitakshara Law of Inheritance. The said property originally belonged to one Kattukandi Edathil Kanaran Vaidyar who had four sons, namely, Damodaran, Achuthan, Sekharan and Narayanan. It is also admitted that Achuthan married Kalyani and they had a son named Karunakaran (Defendant No.1). Karunakaran married Umadevi (Defendant No.3) and they had three children, namely, Valsan, Kasturi and Saraswati Bai (Defendant Nos.2, 4 and 5 respectively). Sekharan and Narayanan did not marry. The plaintiffs have contended that Damodaran married one Chiruthakutty and they had a son by the name of Krishnan (Plaintiff No.1). However, the defendants have contended that Damodaran never married Chiruthakutty. The court below has recorded a finding of fact that the first plaintiff was the son of Damodaran and Chiruthakutty, but not a legitimate son.
Most forthrightly, the Bench then holds in para 15 that:
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.
While citing a famous ruling by Privy Council, the Bench then mentions in para 16 that:
In Andrahennedige Dinohamy and Anr. v. Wijetunge Liyanapatabendige Balahamy and Ors. AIR 1927 PC 185, the Privy Council laid down the general proposition as under:
…where 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.
In another such similar ruling, the Bench then hastens to add in para 17 that, In Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR 1929 PC 135, once again it was laid down by the Privy Council as under:
The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years.
While referring to Apex Court ruling, the Bench then notes in para 18 that:
In Badri Prasad v. Dy. Director of Consolidation and Others (1978) 3 SCC 527, it was held by this Court that a strong presumption arises in favour of wedlock where two partners have lived together for long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon the bastardy.
While mentioning yet another relevant case law, the Bench then observes in para 19 that:
In S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and Others (1994) 1 SCC 460, this Court held as under:
4. 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: Gokul Chand v. Parvin Kumari – AIR 1952 231 : 1952 SCR 825].
On similar lines, the Bench then adds in para 20 that:
Similar view has been taken by this Court in Tulsa and Others v. Durghatiya and Others (2008) 4 SCC 520; Challamma v. Tilaga and Others (2009) 9 SCC 299; Madan Mohan Singh and Others v. Rajni Kant and Another (2010) 9 SCC 209 and Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755.
Be it noted, the Bench then enunciates in para 26 that:
As noticed above, the contention of the plaintiffs is that the marriage of Damodaran and Chiruthakutty was performed in the year 1940. 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 Damodaran and Chiruthakutty 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.
It is worth noting that the Bench then observes in para 27 that:
We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co-habitation. In the circumstances, the High Court was not justified in setting aside the said judgment of the Trial Court.
As a corollary, the Bench then holds in para 28 that:
Resultantly, the appeals succeed and are accordingly allowed. The judgment of the High Court impugned herein is set aside and the judgment and decree passed by the Trial Court is restored. Parties are directed to bear their respective costs.
Briefly stated, the Bench then underscores in para 32 that:
Since there is no limitation for initiating final decree proceedings, the litigants tend to take their own sweet time for initiating final decree proceedings. In some States, the courts after passing a preliminary decree adjourn the suit sine die with liberty to the parties for applying for final decree proceedings like the present case. In some other States, a fresh final decree proceedings have to be initiated under Order XX Rule 18. However, this practice is to be discouraged as there is no point in declaring the rights of the parties in one proceedings and requiring initiation of separate proceedings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree. This Court, in Shub Karan Bubna (supra), had pointed out the defects in the procedure in this regard and suggested for appropriate amendment to the CPC.
Most remarkably, the Bench then expounds in para 33 that:
We are of the view that 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. Therefore, we direct the Trial Courts to list the matter for taking steps under Order 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.
Finally, the Bench then concludes by directing in para 34 that:
We direct the Registry of this Court to forward a copy of this judgment to the Registrar Generals of all the High Courts who in turn are directed to circulate the directions contained in paragraph ‘33’ of this judgment to the concerned Trial Courts in their respective States.
In essence, it is a very well-articulated, well- reasoned, well-analysed, well-substantiated and well-concluded judgment! This remarkable, robust and rational judgment reinforces the time tested stand that long cohabitation between man and woman raises strong presumption in favour of their marriage. No denying!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi (Retd), A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
