Judgment :- This Second Appeal is preferred against the Judgment and Decree in A.S.No.12/2005 dated 24. 2006 reversing Judgment of the trial Court in O.S.No.279/2000 dated 25.01.2005 and thereby passing Preliminary decree for partition of 2nd Plaintiffs 1/4th share in the suit properties as son of late Sadasiva Gounder. 2. Plaintiffs and Defendant claim as legal heirs of deceased Sadasiva Gounder and they are related as under:- Sadasiva Gounder[Died in1979] | | | | =Unnamalai Ammal = Chinna Ammal = Muniammal[P1] 1st wife [died in 1988] 2nd wife [died-issueless] [3rd wife] | | Kuppan (Son) Dhanasekaran(Son) [Appellant-Defendant] [2nd Respondent-2nd Plaintiff] Case of Plaintiffs is that suit properties belonged to Sadasiva Gounder and he died intestate in 1979. According to Plaintiffs, Plaintiffs and Defendant as legal heirs of Sadasiva Gounder are entitled to succeed to the suit properties. At the time of death of Sadasiva Gounder, 2nd Plaintiff was aged 13 years. After the death of Sadasiva Gounder, Defendant was maintaining family properties as Kartha of joint family. Plaintiffs and Defendant are in joint possession and enjoyment of the suit properties and inspite of repeated demands, Defendant has not effected partition. After issuing pre-suit notice, Plaintiffs filed suit for partition of their half share in the suit properties. 3. Resisting the suit, Defendant filed written statement denying 1st Plaintiff as the wife of Sadasiva Gounder. Status of 2nd Plaintiff has legal heir of Sadasiva Gounder is also denied. According to Defendant, 1st Plaintiff was the wife of one Srinivasa Pillai, son of Subbaraya Pillai and there was no valid marriage solemnized between 1st Plaintiff and Sadasiva Gounder and therefore, Plaintiffs cannot claim any share in the suit properties. Since Plaintiffs requested the Defendant to give something to Plaintiffs, after exchange of notices Defendant gave 0.78 acres of land and another 0.07 cents in S.No.142/1A and 1/9th share in the Well Electric Motor and Pumpset in S.No.152/A. According to Defendant, Plaintiffs are given 0.75 acres of land and share in the Well only on humanitarian grounds and not any legal grounds and Patta was also transferred in the name of Plaintiffs. Since, there was no valid marriage between Sadasiva Gounder and 1st Plaintiff, Plaintiffs cannot claim any share in the suit properties. 4. On the above pleadings, eight Issues and two additional Issues were framed. On the side of Plaintiffs, PWs.1 to 4 were examined and Exs.A1 to A10 were marked. Since, there was no valid marriage between Sadasiva Gounder and 1st Plaintiff, Plaintiffs cannot claim any share in the suit properties. 4. On the above pleadings, eight Issues and two additional Issues were framed. On the side of Plaintiffs, PWs.1 to 4 were examined and Exs.A1 to A10 were marked. On the side of Defendants, DWs.1 to 3 were examined and Exs.B1 to B16 were marked. 5. Upon consideration of oral and documentary evidence, trial Court held that Plaintiffs have not filed any documents to prove solemnization of marriage of 1st Plaintiff with Sadasiva Gounder. Trial Court further held that since marriage was not proved, 2nd Plaintiff cannot be held to be a legitimate son of Sadasiva Gounder and not entitled to claim any share in the suit properties. It was further held that based on Ex.A4 sale deed, it cannot be concluded that 2nd Plaintiff is the son of Sadasiva Gounder and on those findings, trial Court dismissed Plaintiffs suit. 6. Being aggrieved by dismissal of the suit, Plaintiffs filed an appeal in A.S.No.12/2005 before District Court, Tiruvannamalai. Referring to Ex.A5 sale deed [22.07.1974] wherein 1st Plaintiff Muniammal has been described as wife of Sadasiva Gounder, lower Appellate Court held that Ex.A5 sale deed would show that 1st Plaintiff was treated as wife of Sadasiva Gounder by Sadasiva Gounder himself. Referring to Ex.A3 [School Transfer certificate of 2nd Plaintiff] and Ex.A4 sale deed [15. 1986] wherein 2nd Plaintiff has been described as son of Sadasiva Gounder, lower Appellate Court reversed the findings of trial Court and allowed the Appeal and passed preliminary decree for partition of 1/4th share infavour of 2nd Plaintiff. 7. Aggrieved by preliminary decree for partition passed, Defendant filed the Second Appeal. At the time of admission of Second Appeal, the following substantial questions of law were formulated for consideration:- 1. Whether the lower appellate court is right in accepting Ex.A.5, sale document, to prove the factum of marriage? 2. Whether the lower appellate court is right in accepting the oral evidence of the parties in support of the factum of marriage? 8. Mr. Umapathy, learned counsel for Appellant contended that factum of marriage between 1st Plaintiff and Sadasiva Gounder and status of 2nd Plaintiff was not proved and therefore, 2nd Plaintiff cannot be deemed to be legitimate son. 2. Whether the lower appellate court is right in accepting the oral evidence of the parties in support of the factum of marriage? 8. Mr. Umapathy, learned counsel for Appellant contended that factum of marriage between 1st Plaintiff and Sadasiva Gounder and status of 2nd Plaintiff was not proved and therefore, 2nd Plaintiff cannot be deemed to be legitimate son. It was further contended that description of 2nd Plaintiff as son of Sadasiva Gounder in Ex.A4 sale deed would not confer that status upon the 2nd Plaintiff. It was further argued that 1st Plaintiff was already married to one Srinivasa Pillai and that she was only a kept mistress of Sadasiva Gounder. Further contention of Appellant is that unless valid marriage between 1st Plaintiff and Sadasiva Gounder is proved, Sec.16 of Hindu Marriage Act cannot be invoked. Reliance was placed upon 1995 (1) LW 487 [K.Munuswami Gounder and another v. M.Govindaraju and 4 others] and 1999 (3) LW 677 [Singaram alias Velayudha Udayar and 2 others v. Subramaniam and 3 others]. 9. Mr.Kumar, learned counsel for the Respondents submitted that long cohabitation of 1st Plaintiff with Sadasiva Gounder would raise strong presumption that Sadasiva Gounder treated 1st Plaintiff as his wife. It was further argued that even if the marriage is null and void, children born out of such marriage shall be deemed to be legitimate children and lower Appellate Court rightly invoked Sec.16 of Hindu Marriage Act. In support of his contention, reliance was placed upon 2008 (1) CTC 773 [Tulsa and others v. Durghatiya and others] and (2009) 9 SCC 299 [Challamma v. Tilaga and others]. .10. Sadasiva Gounders first wife Unnamalai Ammal died in 1988. Sadasiva Gounder pre-deceased her in 1979 itself. In her evidence, 1st Plaintiff [PW2] deposed that she married Sadasiva Gounder in Tiruvannamalai about 35 years prior to the suit and she was living with Sadasiva Gounder in Melathangal village. PW2 has further stated that first wife of Sadasiva Gounder [Unnamalai Ammal] has not objected to her marriage with Sadasiva Gounder. PW3-Karuppan and PW4-Dharman who were working in the fields of Sadasiva Gounder have consistently spoken that Sadasiva Gounder married 1st Plaintiff and that both of them lived as husband and wife in Melathangal village. PW2 has further stated that first wife of Sadasiva Gounder [Unnamalai Ammal] has not objected to her marriage with Sadasiva Gounder. PW3-Karuppan and PW4-Dharman who were working in the fields of Sadasiva Gounder have consistently spoken that Sadasiva Gounder married 1st Plaintiff and that both of them lived as husband and wife in Melathangal village. Case of Defendant is that 1st Plaintiff was the wife of one Srinivasa Pillai, son of Subbaraya Pillai and after death of Srinivasa Pillai she was living with one Manicka Gounder of Singampoondi village and Sadasiva Gounder developed illicit intimacy with 1st Plaintiff. Further case of Defendant is that there was no marriage between 1st Plaintiff and Sadasiva Gounder and she cannot claimed to be the wife of Sadasiva Gounder and 2nd Plaintiff also cannot claimed to be the son of Sadasiva Gounder. Ex.A5 [27. 1974] is the sale deed executed by Sadasiva Gounder and 1st Plaintiff-Muniammal infavour of one Elumalai selling 1.29 acres in S.No.81/2 of Mangalam village. In Ex.A5 sale deed, 1st Plaintiff Muniammal has been described as wife of Sadasiva Gounder. Description of 1st Plaintiff as wife of Sadasiva Gounder is a strong piece of evidence clearly showing that Sadasiva Gounder himself accepted 1st Plaintiff as his wife. If 1st Plaintiff was only a kept mistress, she would not have been joined as vendor in Ex.A5 sale deed. In the trial Court, when Defendant was questioned about the said recitals in Ex.A5 sale deed, Defendant evaded in answering the question saying that he is not having good eye sight to read the recitals. As pointed out by the Courts below when confronted with other documents, Defendant looked at those documents and responded. Recitals in Ex.A5 sale deed go a long way strengthening Plaintiffs case. .11. In determining question of valid marriage, conduct of deceased would be relevant. As pointed out earlier, deceased Sadasiva Gounder had married the 1st Plaintiff. It is well settled that long cohabitation and how the society treated them would be relevant. Holding that presumption of valid marriage though is rebuttable, a heavy burden lies on the person who seeks to prove that no marriage has taken place, in (2009) 9 SCC 299 [Challamma v. Tilaga and others], the Supreme Court held as under:- ."11. In Tulsa v. Durghatiya [ (2008) 4 SCC 520 this Court held; "11. Holding that presumption of valid marriage though is rebuttable, a heavy burden lies on the person who seeks to prove that no marriage has taken place, in (2009) 9 SCC 299 [Challamma v. Tilaga and others], the Supreme Court held as under:- ."11. In Tulsa v. Durghatiya [ (2008) 4 SCC 520 this Court held; "11. At this juncture reference may be made to Section 114 of the Evidence Act, 1872 (in short the Evidence Act). The provision refers to common course of natural events, human conduct and private business. The Court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case. .12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy [AIR 1927 PC 185] Their Lordships of the Privy Council laid down the general proposition that: ...... 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. 13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan [(1928-29) 56 IA 201 ; AIR 1929 PC 135] Their Lordships of the Privy Council once again laid down that: The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years. 14. It was held that such a presumption could be drawn under Section 114 of the Evidence Act." 12. It is also well settled that a presumption of a valid marriage although is a rebuttable one, it is for the other party to establish the same [See Ranganath Parmeshwar Panditrao Moli v. Eknath Gajanan Kulkarni (1996) 7 SCC 681 and Sobha Hymavathi Devi v Setti Gangadhara Swamy (2005) 2 SCC 244 ]. It is also well settled that a presumption of a valid marriage although is a rebuttable one, it is for the other party to establish the same [See Ranganath Parmeshwar Panditrao Moli v. Eknath Gajanan Kulkarni (1996) 7 SCC 681 and Sobha Hymavathi Devi v Setti Gangadhara Swamy (2005) 2 SCC 244 ]. Such a presumption can be validly raised having regard to Section 50 of the Evidence Act. [See Tulsa (2008) 4 SCC 520 ]. A heavy burden, thus, lies on the person who seeks to prove that no marriage has taken place." 12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. A.Dinohamy v. W.L.Blahamy, AIR 1927 PC 185 Privy Council laid down the general proposition that 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. 13. The Privy Council in Mahabhat Ali v. Md. Ibrahim khan [AIR 1929 PC 135], Privy Council once again laid down that the law presumes infavour of marriage and against concubinage when a man and woman have cohabited continuously for number of years. 14. It was held that such a presumption could be drawn under Sec.114 of Indian Evidence Act. Where the partners lived together for long spell as husband and wife there would be presumption infavour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans infavour of legitimacy and frowns upon bastardy [See badri prasad v. Dy. Director of Consolidation and others ( AIR 1978 SC 1557 )]. In Gokal Chand v. Parvin kumari [ AIR 1952 SC 231 ], Supreme Court observed that continuous cohabitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. The arising of a presumption, though rebuttable has also been noticed by the Supreme Court in S.P.S. Balasubramanyam v. Suruttayan 1999 (1) SCC 460. 15. That 1st Plaintiff was living with Sadasiva Gounder as his wife is also strengthened by presumption available in law arising out of long cohabitation of 1st Plaintiff and deceased Sadasiva Gounder. Since first wife Unnamalai Ammal died in 1988, 1st Plaintiff cannot be said to be the lawful wife of deceased Sadasiva Gounder and therefore, lower Appellate Court rightly held that 1st Plaintiff is not entitled to any share in the suit properties. 16. So far as 2nd Plaintiff is concerned, Ex.A3 – School Transfer Certificate of Dhanasekar, his date of birth is stated as 010. 1966 and his fathers name is shown as Sadasiva Gounder which is a strong piece of evidence that 2nd Plaintiff is the son of deceased Sadasiva Gounder. Ex.A4 is the sale deed [11.06.1986] executed by 2nd Plaintiff infavour of Defendant himself in which 2nd Plaintiff Dhanasekar has been described as son of Sadasiva Gounder. Being purchaser under Ex.A4 sale deed, Defendant is bound by the recitals in Ex.A4 sale deed and Defendant is estopped from denying the status of 2nd Plaintiff as son of Sadasiva Gounder. 17. Section 16 of Hindu Marriage Act clearly lays down that notwithstanding that a marriage is null and void under Section 11 and where a decree of nullity has been granted in respect of a voidable marriage, children who are born, who would otherwise have been legitimate if the marriage had been valid, shall be deemed to be their legitimate children. What follows therefrom is that such children will be entitled to inherit their fathers property. 18. In his evidence, PW1 [2nd Plaintiff] has stated that family was living together and in fact for some time, 2nd Plaintiff was living with Defendant in Chennai in Saligramam. While so living with Defendant in Chennai, 2nd Plaintiff had also sent Money Order to his mother Muniammal [1st Plaintiff] as seen from Ex.A9 Money Order coupon. It is also pertinent to note that even according to Defendant in the panchayat lands were given to Plaintiffs in S.No.142/1A and 1/9th share in the Well Electric Motor and Pumpset situated in S.No.152/A. Allotment of certain extent of lands to Plaintiffs is a clear recognition of their status. It is also pertinent to note that even according to Defendant in the panchayat lands were given to Plaintiffs in S.No.142/1A and 1/9th share in the Well Electric Motor and Pumpset situated in S.No.152/A. Allotment of certain extent of lands to Plaintiffs is a clear recognition of their status. Overwhelming documentary and oral evidence would clearly show that 2nd Plaintiff is the son of Sadasiva Gounder and 1st Plaintiff. 19. Considering the scope of Sec.16 of Hindu Marriage Act and holding that children born in such wedlock shall be deemed to be legitimate for the purposes of succession, in 2001 (3) CTC 513 [Kanagavalli and 4 others v. Saroja and 3 others], it was held as under:- 7. ....... In the decision reported in S.P.S. Balasubramanyam v. Suruttayan, AIR 1992 SC 756 the Supreme Court held that the circumstances of evidence in that case did not destroy the presumption that the parties therein lived as man and wife under the same roof. In this case also, there is undeniable evidence that Natarajan and the 1st appellant had lived as man and wife under the same roof. Therefore, the children born to them are not illegitimate and the provisions of Section 16 of the Hindu Marriage Act will be applicable to them. 20. Even though, 1st Plaintiff Muniammal was third wife of Sadasiva Gounder and notwithstanding such marriage is void, children who are born who would have otherwise been legitimate if the marriage had been valid shall be deemed to be their legitimate children. Invoking Sec.16 of Hindu Marriage Act, lower Appellate Court rightly held that 2nd Plaintiff being born out of such marriage shall be deemed to be the legitimate son of Sadasiva Gounder. 21. Admittedly properties being ancestral properties, Sadasiva Gounder was entitled to half share and Defendant is entitled to the remaining half share. Being third wife, 1st Plaintiff is not entitled to any share in the properties of Sadasiva Gounder. From out of half share of Sadasiva Gounder, 2nd Plaintiff is entitled to half share i.e. 1/4th share. Lower Appellate Court rightly held that 2nd Plaintiff would be entitled to 1/4th share in the suit properties. 22. Learned counsel for the Appellant contended that Sadasiva Gounder died in 1979 and first wife Unnamalai Ammal died in 1988 – subsequent to the death of Sadasiva Gounder. Lower Appellate Court rightly held that 2nd Plaintiff would be entitled to 1/4th share in the suit properties. 22. Learned counsel for the Appellant contended that Sadasiva Gounder died in 1979 and first wife Unnamalai Ammal died in 1988 – subsequent to the death of Sadasiva Gounder. It was therefore contended that as wife of Sadasiva Gounder, deceased Unnamalai Ammal was entitled to 1/6th share in the properties [1/2 x 1/3] and 2nd Plaintiff could only be entitled to 1/6th share and learned counsel for Appellant prayed for reduction of 1/4th share to 1/6th share. As rightly submitted by the learned counsel for the Respondents this plea was not raised either in the written statement or before the lower Appellate Court or in the grounds of Second Appeal. Right from the beginning Defendant has raised plea of denial of marriage and denial of status of 2nd Plaintiff. While so, such plea of reduction of share cannot be taken at this distant point of time. 23. Lower Appellate Court arrived at findings after appreciation of evidence and documents on record and the same cannot be interfered with in the Second Appeal. No substantial questions of law arise warranting interference exercising jurisdiction under Sec.100 C.P.C. 24. In the result, the Judgment of the lower Appellate Court in A.S.No.12/2005 dated 26.04.2006 on the file of District Court, Tiruvannamalai is confirmed and this Second Appeal is dismissed. Consequently, connected M.Ps. are closed. No costs.