Judgment : The second defendant is the appellant. The first respondent filed suit O.S.No.791 of 1989 before the District Munsif’s Court, Erode, for partition and separate possession of her l/8th share in item 1 and l/4th share in item 2 of the suit properties on the following averments: The third respondent and the first respondent were the daughters of the second respondent through once Kolandasami Gounder and the appellant was the daughter of Kolandasami Gounder through his first wife Vellayammal. Vellayammal died about 48 years prior to the suit and Kolandasami Gounder married the second respondent as his second wife. Under the original of Ex. A-1 dated 17. 1972 Kolandasami Gounder bought suit item 1 in the joint names of himself and the second respondent for Rs.2,400. The second respondent was entitled to one half share and in the balance one half, the first respondent, the third respondent and the appellant along with the second respondent would each be entitled to l/8th share. The suit second item was purchased under the original of Ex.A-2 on 25. 1958 by Kolandasami. Each of the parties would be entitled to 1/4th share in suit item 2. Kolandasami Gounder died in February, 1988. The demand for partition made by the first respondent and the appellant was not responded. The suit was therefore necessitated. .2. The appellant, who was the second defendant in the suit, resisted the claim on the following averments: Vellayammal died about 30 years" prior to the suit. Kolandasami did not marry the second respondent. Only Vellayammal was his legally wedded wife. No doubt, Kolandasami was in intimate terms with the second respondent, but they did not live as husband and wife. The first and the third respondents were not the children of Kolandasami. The second respondent was only a concubine of Kolandasami Gounder. The first and the third respondents were not next heirs or legal representatives. No form of marriage was gone through between Kolandasami Gounder and the second respondent. The Appellant was the only heir of Kolandasami Gounder. Half of item 1 would go to the second respondent and the other half and the entirety of item 2 would have to be taken by the appellant. .3. The second and the third respondents herein, who were the first and the third defendants in the suit, contended as follows: .The second respondent was the legally wedded second wife of Kolandasami Gounder. .3. The second and the third respondents herein, who were the first and the third defendants in the suit, contended as follows: .The second respondent was the legally wedded second wife of Kolandasami Gounder. The marriage between Kolandasami Gounder and the second respondent took place as per the custom of the community at Kurumbapalayam near Velli Tiruppur in Bhavani Taluk. The marriage was after the death of the first wife Vellayammal. At that time Kolandasami Gounder was residing at Chinnavalasu. After the marriage, the married life between Kolandasami Gounder and the second respondent began at Chinnavalasu. The first and the third respondents were born thereafter. The second respondent also took care of the appellant. Their marriage were also celebrated at the appropriate time. The appellant was given in marriage to Chinnathambi, a cousin brother of the second respondent. Chinnathambi and the appellant came and lived with Kolandasami Gounder and the second respondent in Erode. Respondents 1 and 3 were also given in marriage. They also lived with their parents, viz., Kolandasami Gounder and the second respondent with their husbands. The shares as given in the plaint were correct. There should be a decree in favour of the second and the third respondents and they were also paying the proportionate court-fee. 4. The Second Additional District Munsif, Erode, framed the necessary issues and on the oral and documentary evidence adduced, found that the second respondent was the legally wedded wife of deceased Kolandasami Gounder and that the first respondent was entitled to partition and separate possession by his judgment and decree dated 110. 1994. The learned District Munsif decreed the suit as prayed for. This was confirmed in appeal A.S.No. 3 of 1995 on 3. 1996 by the learned District Judge, Periyar at Erode. Aggrieved the present second appeal has been filed. 5. At the time of admission the following substantial questions of law were framed for decision in the second appeal. .(1) Whether the plaintiff and the first defendant have discharged their burden of proving the performance of the marriage between Kolandasami and the first defendant in accordance with the custom of their community as claimed? .(2) Whether living together without undergoing a form of marriage would confer the status of husband and wife? .(1) Whether the plaintiff and the first defendant have discharged their burden of proving the performance of the marriage between Kolandasami and the first defendant in accordance with the custom of their community as claimed? .(2) Whether living together without undergoing a form of marriage would confer the status of husband and wife? .(3) Whether any child born without their parents undergoing a form of marriage would be entitled to the benefit under Sec. 16 of the Hindu Marriage Act? and .(4) Whether the appellant is estopped from leading evidence with respect to the first defendant’s marriage with Chinnasamy which goes to the root of the matter without a specific pleadings in respect thereof and more particularly when such evidence was not objected to and has not been rebutted in any manner? 6. Mr.P. Rathinadurai, learned counsel for the appellant made the following submissions: The first respondent had come forward with a definite case of marriage and the factum of marriage had not been proved. There were vital discrepancies with regard to the place of marriage and the custom alleged had also not been proved, particularly when there was a plea that the second respondent got married as per custom. The learned counsel also submitted that mere mentioning of Kolandasami Gounder as husband of the second respondent in the sale deed was not sufficient. He also drew attention to the wearing of metti by the second respondent even after she became a widow. The voters’ list and the ration card produced on the side of the first respondent would not prove the marriage. 7. In support of his contention’s the learned counsel relied on the following decisions: (1) M. Shanmugha Udayar v. Sivanandam and others, A.I.R. 1994 Mad. 123; (2)Surjit Kaur v. Garja Singh and others, A.I.R. 1994 S.C. 135; (3) Smt.Bibbe v. Smt.Ram Kali and others, A.I.R. 1982 All. 248;(4) Kamakshi v. Minor Ramalingam alias Munusami and another, (1993)2 M.L.J. 17 ; (5) K. Munuswami Gounder and another v. M. Govindaraju and four others, (1995)1 L.W. 487 ; (6) Mrs.Sudershan Karir and others v. The State and others, A.I.R. 1988 Del. 368. 8. Mr.T. Murugamanickam, learned counsel appearing for the first respondent, made the following submissions. Sufficient evidence had been let in to prove the marriage that had taken place between Kolandasami Gounder and the second respondent. 368. 8. Mr.T. Murugamanickam, learned counsel appearing for the first respondent, made the following submissions. Sufficient evidence had been let in to prove the marriage that had taken place between Kolandasami Gounder and the second respondent. The sale deed in favour of Kolandasami Gounder and the second respondent clearly mentioned Kolandasami Gounder as the husband of the second respondent. Kolandasami Gounder and the second respondent had been accepted by society as husband and wife. There was a presumption in favour of the marriage. Admittedly, the first wife Vellayammal died more than 40 years prior to the suit and therefore on the date the marriage was alleged to have been contracted between Kolandasami Gounder and the second respondent there was no question of contracting a second marriage contrary to the provisions of Bigamy Prohibition Act. The learned counsel also drew my attention to the voters’ list and the photographs produced. He also relied on the following three decisions: .(1) Badri Prasad v. Deputy Director of Consolidation and others, (1978)3 S.C.C. 527 ;(2) Seerangammal (died) and others v. K.S. Venkatasubramanian and others, 100 L.W. 58; .(3) S.P.S. Balasubramanyam v. Suruttayan alias Andalipadayachi and others, (1994)1 S.C.C. 460 . 9. The question is whether there was a valid second marriage between Kolandasami Gounder and the second respondent. The date of death of the first wife would be material. What is the evidence with regard to the date of the first wife? The lower appellate court has dealt with in paragraph 10 of its judgment, with regard to the date of death of Vellayammal in the following words: “With regard to date of death of Vellayammal the oral evidence is conflicting. In the plaint, it is alleged that Vellayammal died about 42 years ago. If that date is taken as correct year of death, then Vellayammal would have died in the year 1947. D.W.1, the second defendant, has stated that she is aged about 50 years. In cross-examination she has stated that she was aged about 10 years on the date of death of her mother. If the age of D. W. 1 is taken as 50 in the year 1994, then Vellayammal would have died in the year 1944. If the alleged marriage between the first defendant and Kolandasami was solemnized in the year 1944, then the marriage would be perfectly valid in law. If the age of D. W. 1 is taken as 50 in the year 1994, then Vellayammal would have died in the year 1944. If the alleged marriage between the first defendant and Kolandasami was solemnized in the year 1944, then the marriage would be perfectly valid in law. But the learned counsel for the appellant relies upon the year of marriage given in the evidence of D. W.2 and the written statement. In the written statement it is alleged that the marriage took place about 45 years ago. The first defendant has filed written statement in the year 1994. If the above year of marriage is taken as true, then it would show that the marriage took place in the year 1949. Therefore, it is contended on behalf of the appellant that the second marriage took place in the year 1948 or 1949 and that the marriage would not be valid in law since the Madras Bigamy Prevention of Marriage Act, 1948 came into force in that year. The above contention of the appellant cannot be accepted as correct, since it is not shown that in the year 1949 Vellayammal, the first wife of Kolandasami Gounder, was alive. The oral evidence of both parties are not definite and clear as to when exactly Vellayammal died and the marriage of the first defendant took place. As there is no evidence that on the date of alleged marriage between the first defendant and Kolandasami the Madras Bigamy Prevention Act was in force, it cannot be said that the marriage pleaded by the first defendant is not valid in law.” 10. If the year of death of Vellayammal is fixed as 1944, the marriage between the second respondent and Kolandasami would be perfectly valid, provided such a marriage was established by actual proof of the factum of the marriage or presumption of marriage. It is contended by Mr. Rathinadurai, learned counsel for the appellant, that the second respondent had come forward with a case of marriage as per custom and that custom must be established. There were vital discrepancies with regard to the place of marriage also. In plaint paragraph 3 it is stated that the first wife died about 38 years ago and after her death, Kolandasami Gounder married the second respondent. There were vital discrepancies with regard to the place of marriage also. In plaint paragraph 3 it is stated that the first wife died about 38 years ago and after her death, Kolandasami Gounder married the second respondent. In the written statement of the appellant, in paragraph 3 it is stated that Vellayammal died about 30 years prior to the suit and in paragraph 5 it is stated that the second respondent was only a concubine and no form of marriage took place between Kolandasami Gounder and the second respondent. The written statement of the second and the third respondents says that the second respondent married Kolandasami Gounder about 45 years ago, after the death of the first wife Vellayammal, as per the custom of community at Kurumbapalayam. At that time Kolandasami Gounder was residing at Chinnavalasu. 11. It should not be forgotten that the second respondent was speaking about something that happened more than 40 to 45 years prior to the suit. As has been observed by the learned District Judge, the appellant as D.W.I in cross-examination had admitted that till the death of her father, the second respondent was coming to her house for about 40 years. The father of the appellant died about 11/2 years prior to the filing of the suit. This, in the opinion of the learned District Judge, would show that the second respondent was living with Kolandasami Gounder for about 40 years. On the date of giving evidence the second respondent was about 75 years. Taking into consideration the age of the second respondent and her daughters it could be reasonably inferred that Kolandasami Gounder and the second respondent would have been living together for more than 40 years. The appellant attempted to put forward a new case in the course of her evidence that the second respondent was already married to one Chinnasamy and left him and came and lived with Kolandasami Gounder. This case was clearly an after-thought and cannot be countenanced. The appellant has admitted that her father was in Chinnavalasu and that she was married 20 years after the death of her mother. The second respondent as D.W.2 has said as follows: 11. The marriage as spoken to by the second respondent might not have been proved to the hilt, but still the question is whether there could be a presumption of marriage in this case. The second respondent as D.W.2 has said as follows: 11. The marriage as spoken to by the second respondent might not have been proved to the hilt, but still the question is whether there could be a presumption of marriage in this case. In Smt.Bibbe v. Smt.Ram Kali, A.I.R. 1982 All. 248 relied on by the learned counsel for the appellant, the marriage was in 1958. The husband died in 1967 and soon after the death of the husband, the case came to be filed. Having regard to the proximity with regard to the date of the marriage, the death of the man and the claim the Allahabad High Court held that, “Where factum of marriage was disputed essential ceremonies constituting the marriage must have been pleaded and proved. Person alleging marriage must plead and prove that marriage had been solemnized in accordance with the custom and usage applicable to either of them. Where a widow examined certain persons to show that some ceremony had been performed, but there was no evidence to the effect that such ceremony of alleged marriage was in accordance with usage and custom applicable to her community, it could not be said that the factum of marriage was duly proved.” In that case, marriage was governed by the provision of the Hindu Marriage Act. There could not have been any reputation evidence also in that case and the decision does not apply to the facts of the present case. 12. In Kamakshi v. Minor Ramalingam alias Munusami and another, (1993)2 M.L.J. 17 relied on by the learned counsel for the appellant, there was an earlier marriage subsisting at the time of the alleged marriage set up in the case. The birth extract of the child was sought to be relied on to prove the marriage. It was held that the factum of marriage could to be proved from the birth extract of the child. 13. In Surjit Kaur v. Garja Singh and others, A.I.R. 1994 S.C. 135, the Supreme Court held that in the absence of proof, pleading of customary marriage and living together as husband and wife by itself would not confer the status of husband and wife. In that case the wife was in the habit of changing husbands frequently. Merely because they lived as husband and wife, the status of wife was not conferred on the person claiming to have married. In that case the wife was in the habit of changing husbands frequently. Merely because they lived as husband and wife, the status of wife was not conferred on the person claiming to have married. The ratio of that case does! not apply to the facts of the present case. 14. The next case relied on by the learned counsel for the appellant is K. Munuswami Gounder and another v. M. Govindaraju and four others, (1995)1 L.W. 487 . That case also would not apply to the facts of the present case. In that case, it was held as follows: “The court is not justified in the circumstances of this case in raising the legal presumption of lawful marriage arising out of long cohabitation and repute under Sec. 114 of the Evidence Act.” From this decision itself it can be inferred that there could be a presumption of a valid marriage under Sec.14. That presumption is no doubt rebuttable. In the instant case, having regard to the documentary proof, it can be presumed that there was a valid marriage between Kolandasami Gounder and the second respondent as alleged by the second respondent and this presumption had not been rebutted by the appellant. The parties had all been living together and in fact, the appellant’s husband was a first cousin of the second respondent. 15. In Badri Prasad v. Deputy Director of Consolidation and others, (1978)3 S.C.C. 527 , a three Judges Bench of the Supreme Court held that from a man and a woman living together for 50 years a strong presumption of marriage between them arises under Secs. 114 and 101 to 103 of the Evidence Act and the burden was very heavy on any one seeking to rebut such presumption. It was also held that if men and women who live as husband and wife in society are compelled to prove, half a century later, by eyewitness evidence that they were validly married, few will succeed. 16. The decision of the Delhi High Court in Mrs.Sudershan Karir and others v. The State and others, A.I.R. 1988 Del. 368, is clearly distinguishable on facts. In that case, marriage was required to be presumed from an authorization letter given by the person claiming to have contracted the marriage, in which she had described herself as the wife of the deceased. 368, is clearly distinguishable on facts. In that case, marriage was required to be presumed from an authorization letter given by the person claiming to have contracted the marriage, in which she had described herself as the wife of the deceased. It was held that that kind of evidence was wholly insufficient. 17. In Seerangammal (die and others v. E.B. Venkatasubramanian and others, 100 L.W. 58, a Division Bench of this Court has referred to the various decisions on the subject and held that, “Presumption of marriage from long-cohabitation and evidence from materials like school records, letters, voters’ list, money order coupons etc. would be sufficient to show that a woman was treated by a man as his wife.” In fact, in that case the description of the lady in the will as was held not to mean a concubine in view of the fact that in several documents she had been described as wife. In that case, the recognition of the lady as wife by the husband himself, even though the origin was in the nature of concubinage and long cohabitation with her, after the death of the first wife, and on the materials to show that society treated her as his wife, the Bench held that those thing would be sufficient to draw the presumption under Sec.114 of the Evidence Act. 18. In S.P.S. Balasubramanyam v. Suruttayan alias Andalipadayachi and others, (1994) 1 S.C.C. 460 , it was held that a presumption arose regarding marriage if a man and a woman lived together for long years as husband and wife. 19. In the light of the settled legal position set out above, if we examine the oral and documentary evidence in the case, the respondents had clearly established that the second respondent was the legally wedded wife of Kolandasami Gounder. The sale deed Ex.A-1 dated 17. 1972 clearly refers to the second respondent as the wife of Kolandasami Gounder. Kolandasami had acknowledged the second respondent as his wife and the ration card Ex.A-6 describes the second respondent as the wife of Kolandasami. The sale deed Ex.A-1 dated 17. 1972 clearly refers to the second respondent as the wife of Kolandasami Gounder. Kolandasami had acknowledged the second respondent as his wife and the ration card Ex.A-6 describes the second respondent as the wife of Kolandasami. The photographs produced also in a way established that the parties were reconciled to the relationship of husband and wife between Kolandasami and the second respondent and the presumption in favour of a valid marriage not having been rebutted, it has to be held that Kolandasami Gounder and the second respondent were validly married and that respondents 1 and 3 were the legitimate children of Kolandasami Gounder and the second respondent. 20. Consequently, the substantial questions raised have to be answered against the appellant and the second appeal fails and is dismissed. However, there will be no order as to costs.