JUDGMENT - H.H. KANTHARIA, J.:---The appellants here are the original defendant Nos. 1 to 4. They shall be hereinafter referred to as defendant Nos. 1, 2, 3 and 4. They challenge the judgment and decree passed by the learned Joint Civil Judge, (Senior Division), Kolhapur, on 31st July, 1975 in Special Civil Suit No. 174 of 1973, decreeing the plaintiff's suit for partition and separate possession of their shares in the suit properties along with past and future mesne profits. 2. This appeal is mainly directed against the first three respondents who were the original plaintiffs (hereinafter referred to as "plaintiff Nos. 1, 2 and 3"). 3. Defendant No. 1 Ningu Vithu Bamane, is the husband of plaintiff No. 3 Gangubai Ningu Bamane. Plaintiff Nos. 1 and 2 are their sons. 4. According to the plaintiffs, defendant No. 4, Jana Ningu Bamane, is the kept mistress of defendant No. 1 Defendant Nos 2 and 3 are their sons. 5. Respondents Nos. 4 to 10 who were defendant Nos. 5 to 11 were made formal parties as they are co-sharers in the immoveable properties involved in the suit. The defendants did not contest the suit and were proceeded against ex parte. They are not even participants in this appeal 6. The suit properties are admittedly properly described in the plaint and no dispute is raised before me about the description of this ancestral moveable and immoveable properties in the hands of defendant No. 1. 7. According to the plaintiffs, defendant No. 1 made a registered partition deed in the year 1960 under which he proceeded to partition the suit properties and give certain shares to defendant Nos. 2 to 4 but the said partition deed was illegal and void ab initio and, therefore, was not binding on them. It is their contention that defendant No. 4 was the kept mistress of defendant No. 1 and defendant Nos. 2 and 3 were the sons born to her as a result of her illicit relations with defendant No. 1. Therefore, defendant Nos. 2 to 4 have absolutely no right, title or interest in the suit properties, further contended the plaintiffs. They can contended that all the suit properties, moveable and immoveable, are the ancestral properties in the hands of defendant No. 1 and, therefore, these properties are liable for partition and each one of them has 1/4th share along with defendant No. 1. They can contended that all the suit properties, moveable and immoveable, are the ancestral properties in the hands of defendant No. 1 and, therefore, these properties are liable for partition and each one of them has 1/4th share along with defendant No. 1. They, therefore, claimed partition and separate possession of their 3/4th joint share in all the suit properties. They demanded partition because there used to be quarrels in the family at the instance of defendant No. 4 and defendant No. 1 ill-treated them and as such it was not possible for them to stay in the house. The plaintiffs also averred that defendant No. 1 drove them out of the house, thus keeping them away from the enjoyment of the suit properties. While claiming partition they also claimed past and future mesne profits from defendant No. 1. Plaintiff No. 3, in the alternative, claimed maintenance at the rate of Rs. 100/- per month as also maintenance for the last three years and prayed that a charge be created on the properties coming to the share of defendant No. 1 for her maintenance. 8. As stated above, the suit was resisted by defendant Nos. 1 to 4 only. Their written statement is at Exh. 11. In their defence, they challenged pecuniary jurisdiction of the trial Court to entertain and try the suit. They contended that the partition effected in the year 1960 was legal and valid and binding on the plaintiffs and, therefore, the suit for fresh partition was not maintainable. According to them, the plaintiffs were not ill-treated and were not driven out of the house and they (plaintiffs) were residing in the same house along with all the defendants till recent past but plaintiff No. 1 got employment at Kolhapur and, therefore, plaintiff No. 3 along with plaintiff No. 2 went to Kolhapur to look after plaintiff No. 1. Thus, according to these defendants, the plaintiffs had voluntarily left the house and that too in the recent past and as such are not entitled to past mesne profits. These defendants denied that defendant No. 4 was the kept mistress of defendant No. 1 According to them, she was the legally wedded wife of defendant No. 1 inasmuch as there was a pat marriage between defendant No. 1 and defendant No. 4 in the year 1948. Thus, defendant Nos. 2 and 3 are the legitimate sons defendant Nos. These defendants denied that defendant No. 4 was the kept mistress of defendant No. 1 According to them, she was the legally wedded wife of defendant No. 1 inasmuch as there was a pat marriage between defendant No. 1 and defendant No. 4 in the year 1948. Thus, defendant Nos. 2 and 3 are the legitimate sons defendant Nos. 1 and 4, they contended. Hence it is the case of these defendants that they are entitled to get share in the suit properties along with the plaintiffs. They, therefore, disputed the ¾th claim of the plaintiffs in the suit properties. They also resisted the alternative claim of plaintiff No. 3 for maintenance. 9. On such pleadings of the parties, the learned trial Judge framed as many as 10 issues. On the evidence adduced before him the learned trial Judge came to the conclusion that he had pecuniary jurisdiction to entertain and try the suit. He, however, held that defendant Nos. 1 to 4 did not prove that defendant No. 4 was the legally wedded wife of defendant No. 1 and that defendant Nos. 2 and 3 are the legitimate sons of defendant No. 1. He also held that the plaintiffs did prove that the partition deed made in the year 1960 by defendant No. 1 was illegal and void and was not binding on the plaintiffs. He held that each of the plaintiffs was entitled to ¼th share along with defendant No . 1 in the suit properties and defendant Nos. 2 to 4 did not have any share and as such the plaintiffs were entitled for partition and separate possession. The learned trial Judge further held that the plaintiffs were entitled to last three years mesne profits at the rate of Rs. 1000/- per year from defendant No. 1 and that the issue as to alternative prayer of plaintiff No. 3 for maintenance did not survive. He accordingly, decreed the plaintiffs' suit. 10. Being aggrieved, defendants Nos. 1 to 4 came to this Court in first appeal. 11. On the submissions made before me at the Bar, the only point that arises for my consideration is whether there was valid marriage between defendant No. 1 and defendant No. 4 and defendant Nos. 2 and 3 are their legitimate sons. 12. 10. Being aggrieved, defendants Nos. 1 to 4 came to this Court in first appeal. 11. On the submissions made before me at the Bar, the only point that arises for my consideration is whether there was valid marriage between defendant No. 1 and defendant No. 4 and defendant Nos. 2 and 3 are their legitimate sons. 12. Let it be first noted here that it is an admitted position that the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, was not applicable to the then Kolhapur State till the year 1953 and, therefore, the marriage between the defendant No. 1 and defendant No. 4 which took place in the year 1948 was permissible despite the fact that defendant No. 1 had at that time a living wife. In other words, defendant No. 1 at that time could marry a second wife during the lifetime of his wife viz. plaintiff No. 3. 13. The moot question is, whether there was a marriage at all between defendant No. 1 and defendant No. 4 and if there was one, whether it was valid. In this connection the case of the plaintiffs is that there was no marriage between defendant No. 1 and defendant No. 4 and that defendant No. 4 was the kept mistress of defendant No. 1. On the other hand, defendant No. 1 and defendant No. 4 contended that they were legally wedded as per a form of the marriage known as pat marriage. Both sides adduced evidence in this regard and I am more than satisfied from the evidence on record that the case of defendant Nos. 1 to 4 is true and that the plaintiffs raised a false bogie of no marriage between defendant No. 1 and defendant No. 4. 14. Let us first examine the evidence adduced by and on behalf of defendant Nos. 1 to 4. Defendant No. 4 deposed that she was married to defendant No. 1 about 4-8 days prior to Gandhi murder. She also deposed that before her marriage with defendant No. 1 she was married to one Babu Chavan who had died before she married defendant No. 1. In other words, she stated that she was a widow at the time when she married defendant No. 1 in the year 1948. She also deposed that before her marriage with defendant No. 1 she was married to one Babu Chavan who had died before she married defendant No. 1. In other words, she stated that she was a widow at the time when she married defendant No. 1 in the year 1948. Her evidence further shows that the marriage took place in a temple, in the presence of her parents and the parents of defendant No. 1 and other relatives, including plaintiff No. 3. She described the ceremonies performed at this Pat marriage. Her evidence further shows that right from the date of her marriage with defendant No. 1 she began to stay with him as his wife along with plaintiff No. 3. A suggestion was made to her that in her community of high caste Marathas there was no custom of Pat marriage which suggestion was flatly denied by her. She also denied a suggestion that she was married to one Krishna Aswala who was alive. Her evidence is fully corroborated by defendant No. 1 who deposed in the same terms and categorically stated that defendant No. 4 was his legally wedded wife and that defendant Nos. 2 and 3 were the sons born to her out of this wedlock. Further, there is another piece of corroborative evidence from the brother of defendant No. 1, Joti Vithu Bamane. He also deposed to the fact of Pat marriage between defendant No. 4 and defendant No. 1 in the year 1948 in a temple in the presence of the parents of both sides as also the police patil. These three witness were subjected to lengthy and searching cross-examination but were not shaken in any way although it is true that there are some minor discrepancies in their evidence to which the learned trial Judge has unnecessarily given undue importance From this evidence I am fully convinced that there was Pat marriage between defendant No. 1 and defendant No. 4. 15. The evidence adduced by and on behalf of the plaintiffs in this regard is not worthy of credence and acceptable. Thus plaintiff No. 1 examined himself as per Exh. 23. All that he stated in his evidence is that defendant No. 4 was the kept mistress of defendant No. 1 and that defendant No. 2 and 3 are their sons. The evidence adduced by and on behalf of the plaintiffs in this regard is not worthy of credence and acceptable. Thus plaintiff No. 1 examined himself as per Exh. 23. All that he stated in his evidence is that defendant No. 4 was the kept mistress of defendant No. 1 and that defendant No. 2 and 3 are their sons. He further stated that the case of defendant No. 1 and defendant No. 4 that they were legally wedded was not true. Beyond this, he has deposed nothing in the examination in-chief about the marriage between defendant No. 1 and defendant No. 4. However, he admitted in the cross-examination that the name of defendant No. 3 Balu was mentioned in the school register as the son of Ningu Bamane and further admitted that he did not know if defendant No. 4 was really a kept mistress of his father. This evidence, therefore, is of no use to the plaintiffs. The next witness is plaintiff No. 3 herself. She also deposed that defendant No. 4 was the kept mistress of her husband and defendant Nos. 2 and 3 are born to defendant No. 4. The Police Patil of the village, Parasharam Ramji Patil, deposed that defendant No. 4 is not the legally wedded wife of defendant No. 1. He stated that although defendant No. 1 and defendant No. 4 stayed together they were not married. He was not sure whether defendant No. 4 was a widow before she was married to defendant No. 1. The evidence of this witness cannot be accepted as satisfactory and worthy of credence inasmuch as he first denied having knowledge about the partition deed made by defendant No. 1 but when his attention was drawn to such a partition deed he admitted having signed it and further admitted that it was mentioned in the said deed that the marriage between defendant No. 1 and defendant No. 4 was a Pat marriage. He, however, maintained that defendant No. 4 was not married to defendant No. 1 and he could not state as to how it was written in the partition deed that defendants No. 4 and defendant No. 1 were married as per Pat marriage form. He gave curious reason as to why according to him there was no Pat marriage between defendant No. 1 and defendant No. 4, the reason being this marriage was not registered. He gave curious reason as to why according to him there was no Pat marriage between defendant No. 1 and defendant No. 4, the reason being this marriage was not registered. The fact that the marriage was not registered does not mean that there was no marriage at all. Therefore, I am not inclined to accept the evidence of this witness. The last witness examined on behalf of the plaintiffs is Dadu Bhima Karambalkar. He also gave the same parrotlike version that defendant No. 4 was the kept mistress of defendant No. 1 and that they were not married. But in the cross-examination he admitted that defendant No. 1 and defendant No. 4 were staying together for the last 20-25 years and defendant No. 4 had sons from defendant No. 1. He also admitted that defendant No. 4 was known as "Janna Ningu Bamane" in the village. The evidence of this witness has to be accepted with a pinch of salt as he appears to be as interested witness, being a relative of plaintiff No. 3 who is the sister of his mother-in-law. In substance, the evidence adduced on behalf of the plaintiffs is one of negative type inasmuch as the plaintiffs did not adduce evidence to show that there was some kind of marriage between defendant No. 1 and defendant No. 4 but the said marriage was not valid. On the contrary, the witnesses examined on behalf of the plaintiffs insisted on saying that there was no marriage between defendant No. 1 and defendant No. 4 and that defendant No. 4 was the kept mistress of defendant No. 1. 16. As stated earlier, the learned trial Judge unnecessarily attached too much importance to some minor discrepancies in the evidence of defendant Nos. 1 and defendant No. 4. It was not warranted to have insisted upon documentary evidence to prove marriage between defendant No. 1 and defendant No. 4. He was also not right in holding that there was no valid marriage between defendant No. 1 and defendant No. 4 only because he was of the view that Pat marriage was not possible in the high class community of Marathas. The learned trial Judge was labouring under a basic mistake that Pat marriage was not a recognised form of marriage by Hindu law. All this is very clear from paragraph Nos. The learned trial Judge was labouring under a basic mistake that Pat marriage was not a recognised form of marriage by Hindu law. All this is very clear from paragraph Nos. 8, 9 and 10 of his judgment where he laid great emphasis on small and in significant points against defendant Nos. 1 and 4 in respect of their marriage. But regard being had to all the facts and surrounding circumstances, I am more than convinced that there was Pat marriage between defendant No. 1 and defendant No. 4. 17. The law as to recognition of Pat marriage is well-settled. We may usefully here refer to and rely upon a judgment of the Nagpur High Court in case of (Mahadeo Sheoram and other v. Mt. Chandrabhagabai w/o Tatoba Gandhi and others)1, A.I.R. (33)1946 Nagpur 232 wherein it was held :--- "A Pat marriage, that is, a remarriage of a widow is a marriage in an approved form. The marriage is valid and the wife by a Pat ceremony is looked upon as a wife with the wife's duties, responsibilities and privileges''. It appears that the parties in the matter before the Nagpur High Court were Patils and I am told at the Bar that in all probability these Patils may also be Marathas. But that apart, as per the law laid down by the Nagpur High Court, Pat marriage is a recognised and approved form of marriage among the Hindus. 18. Mr. Sawant, learned Advocate appearing on behalf of the plaintiffs, submitted that the burden of proving marriage between defendant Nos. 1 and 4 and the legitimacy of defendants Nos. 2 and 3 lies on defendant Nos. 1 to 4 and that the evidence adduced on their behalf does not show that they have discharged this burden. I am afraid, Mr. Sawant is not correct in his submission inasmuch as when the plaintiffs alleged and averred that defendant No. 4 was not legally wedded wife of defendant No. 1 the burden of proof was on the plaintiffs to establish their assertion. I am afraid, Mr. Sawant is not correct in his submission inasmuch as when the plaintiffs alleged and averred that defendant No. 4 was not legally wedded wife of defendant No. 1 the burden of proof was on the plaintiffs to establish their assertion. It was held by this Court in case of (Hoovayya Kanthappa Shetty v. Renuka S. Shetty)2, A.I.R. 1984 Bombay 229 that there was legal presumption in favour of marriage and legitimacy and the burden of proving a fact existing otherwise is on the party who challenged the marriage between two persons and the legitimacy of the children born of such marriage. 19 Apart from my conclusions as above that there was valid Pat marriage between defendant Nos. 1 and 4, the settled law of presumption in this respect is also in favour of defendant Nos. 1 and 4 and against the plaintiffs. This law is to be found in sections 50 and 114 of the Indian Evidence Act, 1872. Section 50 reads as under : "50. When the Court has to form an opinion as to the relationship of one person to another the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact : Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 or in prosecutions under sections 494, 495, 497 or 498 of the Indian Penal Code. Illustrations (a) The question is, whether A and B, were married. The fact that they were usually received and treated by their friends as husband and wife, is relevant. (b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family is relevant." Section 114 reads as under :--- "114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." 20. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." 20. I am of the opinion that in a well organised, orderly and civilised society like ours which is not of loose and uncertain morals, the institution of marriage occupies an important place and plays a very vital role in the process of development of human personality. We have definite views and strong convictions about marital relations. The law as to presumption in favour of marriage under sections 50 and 114 of the Evidence Act is well crystallised. Thus when a man and a woman live together as husband and wife for sufficiently long time and were treated as husband and wife by friends, relatives and neighbours there is always a presumption in favour of their marriage. If children are born to such a couple, there is a further presumption in favour of their legitimacy. The presumption in favour of marriage does not get mitigated or weakened merely because there may not be positive evidence of any marriage having taken place. But if there is some evidence on record that the couple had gone through some form of marriage, the presumption gets strengthened. Therefore, though marriage ceremony said to have taken place may not be valid, the marriage can be held to be valid by force of habit and repute and the onus of rebutting such a marriage would be on the person who denies the marriage. It may also be stated here that this presumption of law in favour of marriage and legitimacy is not to be repelled lightly by mere balance of probability. The evidence for that should be strong, satisfactory and conclusive. If the presumption is permitted to be rebutted lightly, the weaker and vulnerable sections of the society viz. the women and the children could be the victims of the vagaries of uncertainties as to their positions and status in life. This would be very much detrimental in the development of their human personality. They would be the worst sufferers in the society. 21. the women and the children could be the victims of the vagaries of uncertainties as to their positions and status in life. This would be very much detrimental in the development of their human personality. They would be the worst sufferers in the society. 21. We may here usefully refer to the judgment of the Orissa High Court and the Supreme Court in respect of law as to the presumption in favour of marriage and legitimacy. Thus in case of (Gokal Chand v. Parvin Kumari)3, A.I.R. 1952 S.C. 231 the Supreme Court held that continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. In case of (Bira Jena v. Tauli Dei and another)4, A.I.R. 1972 Orissa 143 the Orissa High Court held that when there is evidence showing that a woman was in continuous exclusive keeping of a man, marriage can be presumed. Likewise, in case of (Badri Prasad v. Dy. Director of Consolidation and others)5, A.I.R. 1978 S.C. 1557 the Supreme Court held : "A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebutable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy." The Supreme Court further held : "If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed." 22. In this view of the matter, plaintiff No. 3 and her two sons (i.e. plaintiff Nos. 1 and 2) and defendant No. 4 and her two sons (i.e. defendant Nos. 2 and 3) and defendant No. 1 are all entitled to equal shares in the suit properties. Therefore, the suit properties will have to be partitioned and divided equally among these seven persons and each will get 1/7th share in the entire suit properties. In view of the fact that there is reduction in the shares of the plaintiffs there shall also be consequential reduction in the past mesne profits. 23. Therefore, the suit properties will have to be partitioned and divided equally among these seven persons and each will get 1/7th share in the entire suit properties. In view of the fact that there is reduction in the shares of the plaintiffs there shall also be consequential reduction in the past mesne profits. 23. In the result, this appeal partly succeeds and accordingly the decree as passed by the learned trial Judge is set aside and substituted as under :--- It is hereby declared that plaintiff Nos. 1, 2 and 3 and defendant Nos. 1, 2, 3 and 4 shall have equal share in the suit properties and each of them is thus entitled to 1/7th share in the said properties. The plaintiffs are accordingly entitled to partition and separate possession of their shares amounting to 3/7th of the suit properties. As regards the past mesne profits for the three years the plaintiffs are entitled to Rs. 600/- per year from defendant No. 1. The partition of the suit lands assessed to the Government shall be effected by the Collector or his gazetted subordinate officer as deputed by him who shall partition the suit lands and hand over separate possession of 3/7th share to the plaintiffs. The partition of the suit house and the moveable properties shall be effected by the Commissioner already appointed by the lower Court or to be appointed in that behalf. Future mesne profits shall be determined by separate proceedings in accordance with law. The Court fees shall be recovered from defendant No. 1 and copy of this decree should be sent to the Collector of Kolhapur District for recovery of the amount of Court fees. There shall, however, be no order as to costs. -----