Supreme Court of India
TULSA AND ORS.versusDURGHATIYA AND ORS.
- Citation
- 2008 INSC 55
- Decided
- 15 January 2008
- Disposal
- Case Allowed
- Bench
- ARIJIT PASAYAT
Holding
The Supreme Court held that long‑term cohabitation gives rise to a presumption of marriage under Sections 50 and 114 of the Evidence Act, which is rebuttable but the burden lies on the party seeking to disprove the marriage, and that the evidence showed L and R lived together only after the death of her first husband, so the presumption stands.
Summary
The dispute concerned a joint ancestral property sold to L, who claimed to be the widow of R, while the respondents alleged she was merely a mistress. The trial court held that a presumption of a valid marriage existed because L and R had cohabited for decades and their children were married off by R. The first appellate court, and subsequently the High Court, overturned this, finding that L had begun living with R while her first husband M was still alive, thereby negating the presumption. The Supreme Court examined Sections 50 and 114 of the Evidence Act and held that long‑term cohabitation creates a rebuttable presumption of marriage, placing the burden on the party denying it. Since the evidence showed L and R lived together only after M's death, the presumption stood, and the appellate and High Court judgments were set aside, restoring the trial court's decision.
Issues considered
- Whether a presumption of a valid marriage between L and R arises under Sections 50 and 114 of the Evidence Act based on their long‑term cohabitation.
- Whether the presumption can be rebutted and, if so, who bears the burden of proof.
- Whether the first appellate court erred in concluding that L began cohabiting with R while her first husband was alive.
Legislation cited
- Code of Civil Procedure, 1908s. 100
- Indian Evidence Act, 1872s. 114, s. 50
Subjects
presumption of marriagecohabitationEvidence ActSection 50Section 114burden of proofancestral propertysale deedlegitimacy
Judgment
[2008] 1 S.C.R. 709
TULSA AND ORS. A
¥ v.
DURGHATIYA AND ORS.
(C.A. No. 648 of 2002)
JANUARY 15, 2008
8
[DR. ARIJIT PASAVAT AND P. SATHASIVAM, JJ.]
> Evidence Act, 1872 - ss. 50 and 114 - Presumption as
-r. to marriage between two persons living together - Scope of -
Held: The act of marriage can be presumed from the common c
course of natural events and the conduct of parties - Where
the partners lived together for long time as husband and wife,
there would be presumption in favour of wedlock - The
presumption is rebuttable, but a heavy burden lies on the
person who seeks to prove that no marriage took place.
D
The joint ancestral property in question was originally
owned by Respondent No.1's husband and his two
brothers, 'R' and 'S'. After death of 'R' and 'S', a sale deed
in respect of the said property was executed in favour of
Appellant No.1 's mother, 'L'. E
Respondents filed suit for setting aside the sale deed
claiming sole ownership of the property on the ground
that 'R' and '5' had died without leaving any legal heirs
and that 'L' was only a mistress of 'R'.
F
Per contra, 'L' claimed rights in the property
contending that she was the widow of 'R' and had children
from him.
Trial Court dismissed the suit holding that there was
a presumption of valid marriage between 'R' and 'L' as for G
decades they lived together and their daughters were
.. 'it given in marriage by 'R'. The Court held that 'L' married
'R' after death of 'M', her' first husband. First Appellate Court
set aside the order of Trial Court holding that there was
709 H
710 SUPREME COURT REPORTS [2008] 1 S.C.R.
(
A no presumption of valid marriage since 'L' started living
with 'R' during the life time of 'M'. High Court upheld the
order passed by First Appellate Court. Hence the present
appeal.
Allowing the appeal, the Court
B
HELD: 1. The First Appellate Court without any
evidence or material came to an abrupt conclusion that
the 'L' started living with 'R' during the lifetime of 'M'. There
is no discussion with reference to any material as to the
c basis for such a conclusion. The first appellate court held
that DW2, born to 'L' and 'M', had stated that he was very
young when his father died and when he was young his
mother had left. From that it was inferred that during the
lifetime of 'M', 'L' left her and was living with 'R'. This
conclusion is clearly contrary to the evidence on record.
0
A bare reading of the evidence of OW 2 shows that he
had clearly stated that 'M' was not alive when 'L' came
and stayed with 'R'. [Paras 4, 8] [714-E, F; 716-B,C,D]
2.1. S.114 of the Indian Evidence Act, 1872 refers to
E 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 ss.50 and 114 of the Evidence
Act together, it is clear that the act of marriage can be
F 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. [Para 9] [716-D, E, F]
2.2. Where the partners lived together for long spell
as husband and wife there would be presumption in
G favour 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 in favour of legitimacy and frowns
upon bastardy. [Para 13] [717-C, D]
H
TULSA AND ORS. v. DURGHATIYA AND ORS. 711
[PASAYAT, J.]
-•
~ 2.3. The continuous living together of 'L' and 'R' has A
been established. In fact the evidence of the witnesses
examined by the plaintiff also established this fact. The
conclusion of the first appellate court that they were
living together when 'M' was alive has not been
established. The evidence on record clearly shows that B
'L' and 'R' were living together after the death of 'M'.
)"
[Para 15] [717-G; 718-A]
-;..
Badri Prasad v. Dy Director of Consolidation and Ors.
AIR (1978) SC 1557 - relied on.
A. Dinohamy v. WL. Blahamy AIR (1927) P.C. 185;
c
Mohabhat Ali v. Md. Ibrahim Khan AIR (1929) PC 135 and·
Gokal Chand v. Parvin Kumari AIR (1952)SC 231 - referred
to.
3. The judgment and decree of the first appellate court D
and the High Court are set aside and those of the trial
-r court stand restored. [Para 16] [718-B]
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 648
of 2002.
E
From the Judgment and final Order dated 20.6.2000 of
the High Court of Madhya Pradesh at Jabalpur in S.A. No. 451/
1988.
Prakash Shrivastava for the Appellants.
..... Shiv Prakash Pandey and Raj Kumar Tanwar for the F
Respondents.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the judgment rendered by a learned Single Judge of the Madhya G
., * Pradesh High Court at Jabalpur. The appeal under Section 100
of the Code of Civil Procedure, 1908 (in short the 'Code') was
directed against the judgment and decree dated 29.10.1988
passed by learned llnd Additional District Judge, Satna in Civil
appeal No. 138-A of 1987. The appeal before the First appellate H
712 SUPREME COURT REPORTS [2008] 1 S.C.R.
A court was directed against the judgment and decree dated
26.4.1985 passed by learned Second Civil Judge Class I, Satna
in Civil Suit No. 52-A of 1982. The suit was filed by the
respondents herein for nullifying and setting aside sale deed
dated 10.9.1980 and also for permanent injunction of land at
B SI. Nos. 4009, 4010, 4011 and 4014. The sale deed dated
10.9.1980 was in respect of lands at SI. Nos. 3853, 3993, 4002,
4003, 4004, 4009. 4010, 4014, 4015 and 4021 of Mauza
Nayagaon, Tehsil Raghurajnagar, District Satna. According to
them the disputed property is the joint ancestral property of
c Radhika Singh, Sunder Singh and the husband of plaintiff No.1,
Dad au Singh who was the father of the other two plaintiffs - Smt.
Rani and Smt. Sutan. Vansh Gopal had three sons, Radhika
Singh, Sunder Singh and Dadau Singh. Sunder died without
any legal heir. No partition had taken place between Radhika
D and Sunder and Radhika, Sunder and Dadau all used to do
cultivation jointly. As Radhika and Sunder died without leaving
legal heirs, the plaintiffs became the sole owners of the property.
Loli, the original defendant No.1 is the wife of Mangal Kachhi
and his daughter Tulsa Bai, the present appellant was born to
Loli and Mangal Kach hi. After the birth of her daughter Tulsabai,
E deceased Radhika Singh, kept defendant No.1 as a mistress
in his house and left for somewhere else taking her along and
came back after many years. She gave birth to three daughters
namely Vidya, Badaniya and Rajaniya. Defendant No.1 was a
Kachhia by caste and was also the cognitive of deceased
F Radhika, so she had no legal rights in the property. After the
death of Radhika, Defendant No.1 was residing with Sadri
Prasad Pandey. Sadri Prasad got sale deed executed in favour
of defendant No.1 of disputed property with intention to usurping
the land. Plaintiffs are in possession. They came to know about
G the transaction when defendant Nos.2 to 4 submitted an
application for transfer of land in their names and then it came
to light that defendant No.1 had no title over the land and the
land was in possession of plaintiffs 1 to 3. On 17.12.1984
plaintiffs got the information that the defendant Nos.2 and 3 have
H got their names mutated in respect of certain lands, therefore
TULSA AND ORS. v. DURGHATIYA AND ORS. 713
[PASAYAT, J.]
'¥' the suit was filed. In the written statement filed the defendants A
took the stand that the family tree indicated by the plaintiff was
correct. Out of the land 12 acres owned by the family of
Durghatiya, the plaintiff No.1 had sold her share of land. About
30 years back partition has taken place between Dadau and
Sunder. Dadau had separated after taking his share. He got B
the land in certain villages. Radhika and Sunder used to live
> jointly and used to do cultivation over the land which they got in
'j partition. They died while living jointly in the year 1970. Plaintiff-
Durghatia and Radhika had sold their land in the capacity of
owners during their lifetime. Sunder did not marry and had no c
issue. Defendant No.1 is the widow of Radhika. They were
blessed with five daughters and one son, out of which one son
and one daughter died. The eldest daughter Tulsa and the
younger daughter were given in marriage by Radhika. Plaintiff
No.1 used to regard defendant No.1 as her jethani. Radhika
D
and defendant No.1 lived together for thirty years as husband
'1- and wife and, therefore, she had legitimate claim over the
property as his wife. It was also disputed that defendant No.1
was living with defendant Nos.2 to 5. Defendant No.1 had sold
the lands to defendant Nos.2, 3 and 4 had also given
possession. Defendant No.1 had taken a debt on the marriage E
of her son and for that purpose she sold the land. She claimed
that she had right to sell the land and therefore no question of
having any illegal possession. Four issues were framed by the
trial court and the important and vital issue was framed as issue
-.+- F
No.2 which read as follows :
"Whether the defendant No.1 was the wife of Radhika
Singh"?
The question was answered in the affirmative. After
referring to the evidence of the witnesses examined by the G
.. k plaintiffs as well as the defendants, the trial court held that there
was no merit in the suit and accordingly it was dismissed. The
judgment and decree were questioned in appeal before the first
appellate court.
H
714 SUPREME COURT REPORTS [2008] 1 S.C.R.
A 2. As noted above, the first appellate court allowed the "l
appeal. The trial court noted that there was a presumption of
valid marriage, as for decades Radhika and defendant No.1
lived together, their daughters were given in marriage by
Radhika. Loli the defendant No.1 was earlier married to
s Mangala Kochhi and after his death she married Radhika. It is
to be noted that the stand of the plaintiffs was that Loli married
Radhika during the lifetime of Mangal Katchhi. The trial court , ,,,,
rejected this plea. The first appellate court observed that Loli ~
started living with Radhika during the life time of Mangal Katchhi,
c so the presumption of valid marriage was not there. The
judgment and decree of the first appellate court was challenged
before the High Court. The High Court formulated the following
questions for adjudication:
"Whether in the facts and circumstances of the case,
D the first appellate Court erred in law in finding that Mst.
Lollibai was not the legally married wife of Radhika
Singh?"
3. After discussing the respective stand of the parties, the
High Court came to a somewhat peculiar finding. It held that the
E findings recorded by the appellate court may be erroneous, but
it does not appear to be perverse.
4. It is to be noted that the first appellate court without any
evidence or material came to an abrupt conclusion that the
F defendant No.1 Loli started living with Radhika during the lifetime -;.
of her husband. There is no discussion with reference to any
material as to the basis for such a conclusion.
5. Some of the conclusions of the trial court in this regard
are relevant. In paragraph 16 of the judgment it was noted as
G follows:
"In the content of the aforesaid judgment, now we have
to examine this that whether we have sufficient basis to
make a presumption of legal marriage of Lolli and Radhika
Singh. In this connection, plaintiff witness Visheshar had
H
TULSA AND ORS. v. DURGHATIYA AND ORS. 715
[PASAYAT, J.]
r admitted in para 9 of his statement that there were four A
daughters and one son born of Lolli and Radhika Singh.
The eldest daughter of Lolli is Tulsi. Rani was born to Lolli
after 2-3 years of her arriving in the village. Three of the
daughters of Lolli was married off by Radhika Singh and
she had also contributed." B
6. Again at para 18 it was observed as follows:
i'
"" ....,._
/
"Witness Devdhari has also admitted in his statement
that after2-3 years of the birth of first born Bhaiyalal Mangal
Kachhi had died. Lolli used to work as a labourer. She c
also used to be labourer with Radhika Singh. Radhika
Singh had retained Lolli as his wife. The daughters of Lolli
were married off by Radhika Singh. Ram Milan Singh had
admitted in his statement that all these four daughters
were alive. They were born of Radhika and Lolli. The
D
daughters which were born of Radhika Singh, their
Kanyadan was also performed by Radhika Singh. He
has also admitted this in his statement that Radhika
Singh had married off his daughters as Vaishyas and
Thakurs married off their daughters. He had attended
the marriage." E
7. In para 24 it was observed as follows:
"This has also been argued by learned counsel of the
plaintiff that even if this is accepted that Lolli and Radhika
Singh stayed as husband and wife for many days and they F
were blessed with children even then it cannot be
presumed that Lolli is legitimate wife of Radhika Singh.
Because Lolli moved in with Radhika Singh then her
husband had been alive. His former husband Mangal
Kachhi had been alive, till she got divorce by Mangal G
~ >;-· Kachhi till then Lolli could not have entered in second
marriage with Radhika-Singh. I am no in agreement with
this argument of the learned counsel of the plaintiff because
the evidence, which has been adduced from the side of
the plaintiff and defendants, from that it becomes clear, H
716 SUPREME COURT REPORTS [2008) 1 S.C.R.
A that after Bhaiyalal was born to Lolli from mangal, mangal
had thrown Lolli out of the house. Then Lolli worked as a
casual labourer for some time and meanwhile Mangal
had died. Thereafter Radhika Singh adopted her as his
wife. This fact has been admitted by Devdhari in para 4
B. of his statement that Lolli used to frequent village Bointa
from Bandhi to work as a labourer, thereafter she was
adopted."
8. In contrast, the first appellate court held that Bhaiyalal
(DW2) who was born to Lolli and Mangal, had stated that he
C was very young when his father died and when he was young
his mother had left. From that it was inferred that during the
lifetime of Mangal Katchhi, Lolli left the Mangal and was living
with Radhika. This conclusion is clearly contrary to the evidence
on record. A bare reading of the evidence of OW 2 shows that
D he had clearly stated that Mangal was not alive when Lolli came
and stayed with Radhika.
9. At this juncture reference may be made to the Section
114 of the Indian Evidence Act, 1872 (in short the 'Evidence
Act'). The provision refers to common course of natural events,
E 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
F the conduct of parties as they are borne out by the facts of a
particular case.
10. A number of judicial pronouncements have been made
on this aspect of the matter. The Privy Council, on two occasions,
G 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. Dinohamyv. WL. B/ahamy [AIR
1927 P.C. 185) their Lordships of the Privy Council laid down
the general proposition that:
H "Where a man and woman are proved to have lived
TULSA AND ORS. v. DURGHATIYA AND ORS. 717
~ [PASAYAT, J.]
,.. together as man and wife, the law will presume, unless, A
the contrary be clearly proved that they were living together
in consequence of a valid marriage, and not in a state of
concubinage."
11. In Mohabhat Ali v. Md. Ibrahim Khan [AIR 1929 PC
135] their Lordships of the Privy Council once again laid down B
that:
;
i- "The law presumes in favour of marriage and against
concubinage when a man and woman have cohabited
continuously for number of years." c
12. It was held that such a presumption could be drawn
under Section 114 of the Evidence Act.
13. Where the partners lived together for long spell as
husband and wife there would be presumption in favour of D
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
in favour of legitimacy and frowns upon bastardy. (See: Badri
Prasad v. Dy. Director of Consolidation and Ors. [AIR 1978
SC 1557]. E
14. This court in Gokal Chand v. Parvin Kumari [AIR
1952 SC 231] observed that continuous co-habitation of
woman as husband and wife and their treatment as such for
}-- a number of years may raise the presumption of marriage, F
but the presumption which maybe drawn from long co-
habitation is rebuttable and if there are circumstances which
weaken and destroy that presumption, the Court cannot ignore
them.
15. As noted above, the continuous living together of Lolli G
~
. and Radhika has been established. In fact the evidence of the
witnesses examined by the plaintiff also established this fact.
The conclusion of the first appellate court that they were living
together when Mangal was alive has not been established. The
H
718 SUPREME COURT REPORTS [2008] 1 S.C.R.
A evidence on record clearly shows that Lolli and Radhika were ·..-
living together after the death of Mangal.
16. Above being the position, the appeal deserves to be
allowed which we direct. The judgment and decree of the first
appellate court and the High Court are set aside and those of .
8 the trial court stand restored. t
B.B.B.
17. Appeal is allowed but with no order as to costs.
Appeal allowed.
-
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