Holding

The Supreme Court set aside the appellate courts' findings, restored the trial court's finding that Shevantabai was Panditrao's wife, declared the plaintiffs legal heirs, and remitted the case to the lower appellate court to decide the injunction based on possession evidence.

Summary

The plaintiffs, sons of the deceased Panditrao and his alleged wife Shevantabai, sued for an injunction to protect their possession of a 3.18‑hectare property, claiming they were legal heirs. The trial court accepted the admission that Shevantabai lived with Panditrao as his wife, applied the legal presumption of a valid marriage arising from long cohabitation, and granted the injunction. The lower appellate court and the High Court reversed, holding that no marriage was proved and that cohabitation alone did not create a presumption. The Supreme Court, exercising its power under Article 136, held that the appellate courts had ignored vital evidence – the defendant’s admission – and therefore erred in rejecting the presumption of marriage, which was not rebutted. It restored the trial court’s finding that Shevantabai was Panditrao’s wife, that the plaintiffs are his legal heirs, and remitted the matter to the lower appellate court to re‑examine the evidence on possession for the injunction.

Issues considered

Whether the Supreme Court may interfere with factual findings of lower courts under Article 136 when vital evidence or admissions have been ignored.
Whether a legal presumption of a valid marriage arises from long‑term cohabitation and an admission, and whether that presumption is rebuttable.
Whether the plaintiffs are the legal heirs of the deceased Panditrao.
Whether the injunction relief should be decided by the Supreme Court or remitted for determination of possession.

Legislation cited

Constitution of Indias. 136

Subjects

presumption of marriagelegal heirsinheritanceinjunctionArticle 136Supreme Courtfactual findingscohabitationsuccessionproperty possession

Judgment

\
A RANGANATH PARMESWAR PANDJTRAO MALI AND ANR.
v.
EKNATH GAJANAN KULKARNI AND ANR.

JANUARY 12, 1996

B [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Co11.witution of India, 1950 : Article 136

Appeal-Finding of fact-Non-consideration of vital evidenc~Such
C a finding can be inteifered with.

Law of inheritance:

Factun1 of 1narriage-Proo.f o_f-Suit for injunction by legal
heirs--Claim ,for property based on inheritance from ancestors-DiJpute as
D to marriage of ancestors-Fact of living together as husband and w(f~Fact
corroborated Dy admission-Held a presumption arises as to valid marriage
unless rebutted-Legal heirs held entitled to succeed to property.

The appellant-plaintiffs filed a suit seeking relief of injunction
praying that the respondent-defendants be restrained from obstructing
E their peaceful possession to the suit properties. Their case was that they
were sons of P who had married S and that they had inherited the suit
property as a result of partition between P and the father of the
defendants G. The respondents also filed a suit for injunction contending
that the appellants were not the legal heirs of P as he died without
F marrying anybody.

The Trial Court dismissed the respondent's suit and decreed the
appellant's suit by granting the injunction prayed for. Its findings were
that : (i) the appellants had proved that S was wife of P and this was
corroborated from admission made by defendant No. 1 that S was living
G with P; and (ii) appellants being the only legal heirs of P were entitled
to property which was in their continuous possession.

The first appellate Court reversed the findings of the Tr,ial Court
..,.
and held that (i) there was no evidence of marriage between P and S
H though both were living together; and (ii) mere residing together as
454
R.P.P. MALI v. E.G. KULKARNI 455
husband and wife does not give rise to the presumption that their A
marriage was legal and valid; such a presumption would arise if there is
evidence on record to prove the factum of marriage. In second appeal the
High Court affirmed the conclusion of first appellate Court. Conse-
quently the appellants were held not entitled to the relief prayed for.

In appeal to this Court it was contended that both the appellate
B
Conrts erred in not relying upon the presumption of ,valid marriage
between P and S - a fact which was admitted by defendant.

On behalf of the respondents it was contended that the findings of
fact arrived. by two Courts below should not be interfered with under C
Article 136 of the Constitution.

Allowing the appeals, this Court

HELD : 1. It is no doubt true that a finding arrived at on a question
of fact by the lower appellate court or the High Court is not ordinarily D
interfered with by this Court under Article 136 of the Constitution. But if
such finding is recorded by non consideration of some vital piece of
evidence or admission of the adversary, then this Court will be fully
justified in interfering with the finding in question. [459-D-E]

2. In this case the consistent evidence is that P and S were living E
together for long years as husband and wife and plaintiff No. 1 is their
son. The defendant also admitted the aforesaid fact but contended that
there had been no valid marriage between P and S. A legal presumption
does arise, though the presumption is rebuttable and this presumption
has not been rebutted by the defendant. The High Court committed an F
error of law in recording a finding that the presumption would arise only
if the factum of marriage is proved. If factum of marriage is proved, the
question of raising a presumption does not arise. The lower appellate
court on the other hand has merely entered into the arena of conjecture
and surmises by interfering with the finding of the Trial Judge without' G
considering the relevant and material evidence on the point. The findings
arrived at by both these courts on the question of relationship of ~ and
S cannot be sustaiued in law. Appellants having been begotten by.,S from
P, they are the legal heirs over the property of P and would succeed to
the said property. [459-E-H; 460-A-C] H
456 SUPREME COURT REPORTS [1996] 1 S.C.R.

A S.P.S. Balasubrama11yam v. Surutayan, [1994] 1 SCC 460, referred to.

3. Instead of considering the evidence and the consequential finding
of possession in favour of the appellants by the Trial Court the lower
Appellate Court merely reversed the judgment once it came to the
conclusion that they are not the legal heirs of P. There is no consideration
B of evidence of possession by the lower Appellate Court or by the High
Court. According!y, the matter is remitted to the lower appellate Court
to reconsider the evidence and the findings on the question of possession
to decide the relief of injunction. [460-D-F] >
C CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1651-52 of
1996.

From the Judgment and Order dated 21.7.94 of the Bombay High
Court in S.A. Nos. 209 and 210 of 1994.

D S.M. Jadhav for the Appellants.

LG. Shah, Ms. Manjula Gupta, Makarand D. Adkar, S.D. Singh and
Ejaz Maqbool for the Resondents.

The Judgmnel of the Court was delivered by
E
G.B. PATTANAIK, J. Leave granted.

The appellants are the plaintiffs who filed a suit seeking injunction
against the respondents in the Court of Civil Judge, Junior Division in the
district of Ahmednagar. The said suit was registered as Suit No. 200 of 1985.
F It was alleged that the common ancestor Bhanudas had two sons Panditrao
and Gajanan. Plaintiffs are the sons of Panditrao from his marriage with
Shevantabai and the defendants are the sons of Gajanan. The further case of
the plaintiffs was that there had been a petition between Panditrao and
Gajanan and the suit property admeasuring 3.18 hectares in village Kongoni
G had been allotted to the heirs of Panditrao. Panditrao died in the year 1976
leaving behind his sons the plaintiffs and the widow shevantabai. Shevantabai
died in 1977 and thereafter the plaintiffs are in continuous possession of the
suit property. The defendants however managed to get their names entered in )
the revenue record by way of mutation. Against the said order of mutation
H the plaintiffs preferred an appeal and the appellate authority had set aside the
R.P.P. MALI v. E.G. KULKARNI (PATIANAIK, J.] 457
order of mutation in favour of the defendants. But still the defendants having A
obstructed the plaintiffs' possession, the plaintiffs filed the suit seeking relief
of injunction praying that the defendants be restrained from obstructing the
peaceful possession of the plaintiffs. The defendants filed written statement
denying the avermcnts made in the plaint and took the stand that the
plaintiffs are not the legal heirs of Panditrao, they also took the stand that the B
property is not ancestral property of the plaintiffs as alleged and the plaintiffs
are never in possession of the same. According to defendants they being the
sons of brother of Panditrao are the only legal heirs and said Panditrao had
died without marrying any body. On these pleadings the learned Trial Judge
framed three issues and recorded the following findings :
c
(1) Plaintiffs have established the fact that Shcvantabai is the wife
of Panditrao which is c01Toborated from the admission of defendant
no. I that Shevantabai was living with Panditrao and she was
looking after him while he was ill.
D
(2) Plaintiffs are sons of Shevantabai who arc begotten from
Panditrao.

(3) The plaintiffs are legal heirs of Panditrao and are entitled to
claitn the property which came to Panditrao on partition between
Panditrao and father of the defendants. E
(4) The disputed property being the separate property of Panditrao,
plaintiffs are the only heirs to the same. Plaintiff No. l is residing
in the suit land by erecting vasti and it is admitted that after death
of Panditrao plaintiffs is in continuous possession of the suit land.
F
With these conclusions, the suit was decreed with the declaration that
the suit land belongs to Panditrao, the father of the plaintiffs and plaintiffs are
the legal heirs and defendants were restrained from obstructing the peaceful
possession of the plaintiffs over the suit land.

The defendants in the aforesaid suit had also filed a suit for injunction G
which had been registered as Civil Suit No. 22 of 1985 and the said suit was
accordingly dismissed. Two appeals were preferred against both the judg-
ments which were registered as Civil Appeal No. 199/88 and Civil Appeal
No. 200/88. The learned Additional District Judge reversed the findings and
conclusion of the Trial judge and allowed these appeals. The Appellate Court H
458 SUPREME COURT REPORTS [1996] 1 S.C.R.
A came to hold that there has been no evidence of marriage between Panditrao
and Shcvantabai though Shevantabai was living with Panditrao and both of
them were having illegitimate relationship .. He further held that mere residing
together as husban_d and wife does not ipso facto prove that their marriage

B
is legal and valid and therefore Ranganath and others, plaintiffs in Regular
Civil Suit No. 200 of 1985 are not entitled to inherit the property of
deceased Pandit. The lower Appellate Court further came to the conclusion
that since the plaintiffs in Civil Suit No. 200 of 1995 are not entitled to
-
succeed to the property of Panditrao, the prayer, for injunction could not
have been granted. With these conclusions the judgment and decree of both
the suits having been reversed and the appeals having been allowed, the
c matter was carried in Second Appeal to the High Court, which were
registered as second Appeal Nos. 209 of 1994 and 210 of 1994. The second
Appellate Court agreed with the learned Additional District Judge and came
to hold that since Shevantabai was 'Mali' by caste while Pandit was
'Brahmin' and there was no marriage between them and Shevantabai must be
-,
D held to be his concubine and the lower appellate court rightly held that the
factum of marriage had not been proved. Negating the contention with regard .
to presumption of a valid marriage between Shevantabai and Panditrao from
the fact that they have been living together as husband and wife for a
continuous and long period, the second appellate court held that such ..
E presumption would arise if there is evidence on record to prove the factum
of n1arriage and the fact of staying together with the concubine as husband
and wife but since there is no evidence of factum of marriage, question of
presumption being attracted docs not arise. Consequently it was held by the
•
second appellate court that the learned Additional District Judge rightly held '"'
F that the respondents are entitled to a decree of injunction on their suit No. 22
of 1985 and ultimately confirmed, the judgment and decree of the learned
Additional District Judge. It is against this judgment and decree of the second
appellate court, the present appeal by special leave is directed.

The learned counsel for the appellants contended that the lower
G appellate court as well as the High Court committed serious error by not
relying upon the presumption of a valid marriage when admittedly Panditrao
and Shevantabai lived together for long years as husband and wife and said
fact was admitted by the defendants. He further contended that non-
consideration of this admission by the defendant vitiate the ultimate conclu-
H sion on the question of relationship between Panditrao and Shevantabai.
R.PP. MALI,,_ E.G. KULKARNI [PATTANA!K, J.] 459
Accordingly he contended that the said conclusion is liable to be reversed A
and consequently the plaintiffs in Regular Civil Suit No. 200 of 1985 must
be held to be legal heirs of Panditrao and Shevantabai. The learned counsel
appearing for the respondents on the other hand contended that the lower
appellate court as well as the High Court having considered and recorded that
there was no valid inarriage between Panditrao and Shevantabai, it would not B
be proper for this Court to exercise power under Article 136 of the
Constitution to interfere with the conclusion arrived at by the two courts
below and therefore the judgment and decree of the two courts below are
' immune frotn interference.

In view of the rival stand of the parties the first question that arises for C
consideration is whether n1erely because the factum of 1narriage has not been
established, was it open for the lower appellate court as well as the High
Court to set aside the finding of the Trial Judge, which finding was based on
not only arising out of the legality of a presumption fro1n the fact of living
together as husband and wife but also the admission of defendant no. 1 that D
Shevantabai was residing with Pandit in the Wada in village for long years
and the plaintiff no. I is son of Shevantabai? It is no doubt true that a finding
arrived at on a question of fact by the lower appellate court or the High Court
is not ordinarily interfered with by this Court under Article 136 of the
Constitution. But if such finding is recorded by non consideration of sorne E
vital piece of evidence or adrr.ission of the adversary, then this Court will be
fully justified in interfering with the finding in question. In the case in hand,
the consistent evidence being that Panditrao and Shevantabai were living
together for long years as husband and wife and plaintiff no. I is their son
and the defendant also admitted the aforesaid fact but contended that there
F
had been no valid marriage between Panditrao and Shevantabai, a legal
presumption does arise, though the presumption is rebuttable and this
presumption has not been rebutted by the defendant. It has been held by this
Court in the case of S.P.S. Balasubramanyam v. Surutayan, [ 1994] l SCC
460 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 G
between the two. But the presumption is rebuttable. The High Court,
committed an error of law in recording a finding that the presumption would
arise only if the factum of marriage is proved. We are afraid if factum of
marriage is proved, the question of raising presumption does not arise. The
lower appellate court on the other hand has merely entered into the arena of H
460 SUPREME COURT REPORTS [ 1996] I S.C.R.
A conjecture and sunnises by interfering with the finding of the Trial Judge
without considering the relevant and material evidence on the point.· In this
view of the matter findings arrived at by the lower appellate court as well as
by the High Court on the question of relationship of Panditrao and Shevantabai
cannot be sustained in law. In our considered opinion a legal presun1ption
B arises on the admitted fact that they were living together as husband and wife
and the said presumption has not been rebutted. We would accordingly set
aside the findings of the High Court as well ·as the findings of the Additional
District Judge on this score and restore the finding of the Trial Judge on this
score and hold that Shevantabai was the wife of Panditrao and plaintiffs
having been begotten by Shevantabai from Panditrao are the legal heirs over
c the property of Panditrao and would succeed to the said property.

The next question arises for consideration is whether prayer for
injunction granted by the Trial Court in favour of the plaintiffs would have
been reversed by the lower appellate court? We find from the judgment of the
D lower appellate court that instead of considering the evidence and the
consequential finding of possession in favour of the plaintiff by the Trial
Court the lower Appellate Court merely reversed the judgment once coming
to the conclusion that the plaintiffs are not the legal heirs of Panditrao. In fact
there is no consideration of evidence of possession by the lower Appellate
E Court or by the High Court. In that view of the matter it would not be proper
for this Court to finally conclude the question and the other hand it would
be proper lo remit the matter to the lower Appellate Court. In the aforesaid
circumstances the judgment and decree of the High Court as well as those of
the Additional District Judge, Ahmednagar are set aside. Question of
Shevantabai being the wife of Panditrao and the plaintiffs are legal heirs of
F
Panditrao is concluded and would not be reopened. But the lower appellate
court would reconsider the evidence and the findings on the question of
possession to decide the relief of injunction.

The appeals are allowed with the aforesaid directions. The two
G impugned Second Appeal Nos. 209/94 and 210/94 are remitted back to the
lower Appellate Court for decision of the appeals in accordance with law,
bearing in mind the observations made above, after giving opportunity of
hearing. Parties to bear their own costs.

T.N.A. Appeals allowed.