TULSA AND ORS. versus DURGHATIYA AND ORS.

Citation: [2008] 1 S.C.R. 709 · Decided: 15-01-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[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 
.. 'it 
decades they lived together and their daughters were 
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. 
B 
Allowing the appeal, the Court 
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 
0 conclusion is clearly contrary to the evidence on record. 
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. 
From the Ju

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