K PITCHAIAH Vs. G SUBBA REDDY

JUDGEMENT

(1.) What is the legal effect of an earlier marriage of a person on the presumption that arises in favour of seccond marriage of that person with another because of long cohabitation ? Whether the presumption in favour of the validity of marriage because of long cohobitation between a man and a woman would also extend to and include a further presumption that the earlier marriage of one of them is duly dissolved because of the long abandoment ; if not, whether the fact of earlier marriage is by itself enough to rule out the "presumption" in favour of the validity of second marriage because of long cohabitation, or whether the earlier marriage unless otherwise proved to have been dissolved, can only be taken as a circumstance just like other circumstances for rebutting such a presumption. These are the important questions that arise for our consideration in this second appeal.

(2.) Our learned brother Ramaswamy, J. before whom this second appeal came up for final hearing, felt that the decision in Nagarajamma vs, State Bank of India which was relied upon by the respondents-defendants requires re-consideration and to have an authoritative pronouncement on the point involved, he referred the matter to a Bench. In Nagarajamma's case (1 Supra) it is held that though a presumption in favour of marriage because of long cohabitation arises, but when one of them was already married such a presumption of second marriage does not arise. In some other decisions of this Court as well as of other High Courts a slightly different principle is evolved. Relying on some of these decisions, the learned counsel for the appellants submitted that the general principle is that a presumption of validity of marriage because of long cohabitation between a man and a woman arises and that the same being well settled should also be extended to include a further presumption that the earlier marriage is duly dissolved because of long abandonment. As we shall presently see, the other decisions have not gone so far, but they have struck a slightly different note from what has been laid down in Nagarajamma's case (1 Supra), and therefore an occasion has arisen to reconsider the principle laid down in Nagarajamma's case (1 Supra).

(3.) The facts that have given rise to these questions are as follows : The suit schedule property belongs to one Pitchaiah. One Chinnakka who was married to one Thuraka Venkataswamy, left him and started living with one Pitchaiah as his wife after the demise of his first wife, and lived with him for nearly 30 to 40 years. During this period Venkataswamy did not rise asy objection for Chinnakka living with Pitchaiah. Pitchaiah died intestate. Chinnakka who purported to have inherited to his estate as being the sole heir, sold the plaint schedule property to the plaintiff under a registered sale deed Ex. A-1 dated 5-8-1970 for valuable consideration. As the defendants were interfering with the possession of the plaintiff, he filed the suit. The 5th defendant is the legal heir of Pitchaiah and 4th defendant is the tenant. TheSr plea has been that Chinnakka is not the legally wedded wife of Pitchaiah and she was living with him only as his concubine and her former marriage with Thuraka Venkataswamy was not dissolved and therefore she cannot claim to be the married wife of Pitchaiah and consequently she cannot claim to be the heir of Pitchaiah and she had no right to sell the property. It is also the contention of the defendant that the 5th defendant has been in possession in his own right as the adopted son of Pitchaiah.