NIZAMPATNAM NAGACHARI Vs. KONDIPARTI BUTCHAYYA (DIED) AND ANR.

JUDGEMENT

(1.) IT is urged for the appellant that the learned Subordinate Judge went wrong in deciding points 1 and 2 in favour of the legal representatives of the plaintiff and against the fourth defendant. The finding of the Subordinate Judge is to the deflect that though Venkatarattamma and Durgiah were living together and passing themselves off as husband and wife", before society, there was no presumption that they were legally married. It is, of course, true that the presumption to be drawn in favour of marriage from cohabitation will have to vary from country to country or society to society, as pointed out by the Privy Council in Ma Wun Di. v. Ma Kin (1907) 18 M.L.J. 3 : L.R. 35 IndAp 41 : I.L.R. 35 Cal. 232 (P.C.). Where concubinage is permitted or recognised or where even if it is not expressly permitted it is winked at or condoned by the Society to which the parties belong, the presumption in favour of marriage becomes weak. But where it is established by evidence that a man and woman were not merely living together but professed themselves to be husband and wife and were treated as such by the society in which they moved and this conduct and recognition extended over a sufficiently long period of time, a presumption can well be drawn in favour of marriage.

(2.) IT is contended for the appellant that in the present case there is evidence on record to show that Venkatarattamma and Durgiah whom it is alleged, she married after first husband's death lived together as husband and wife and were treated so by the members of the community in whose midst they were living and that this evidence has not been considered by the learned Subordinate Judge adequately. The appellant is therefore entitled to ask for a revised finding on the point which is whether Venkatarattamma married Durgiah after the death of her husband Nagayya, and whether in the absence of any direct proof of such marriage, it can be presumed that they were married. The finding will be submitted on the evidence on record within six weeks after the receipt of this order by the lower Court, the parties being given ten days for objections thereafter.

(3.) ON receipt of the finding the Court delivered the following.