BIMALENDU GOSWAMI Vs. UPENDRA CHANDRA SAHA

JUDGEMENT

(1.) IF a Hindu woman dies leaving behind her a son by her first husband and also her second husband, her properties, as would be obvious iron the provisions of Section 15 of the Hindu Succession Act, would devolve on both the son and the husband in equal shares. Therefore, if Jamuna, who was the mother of the defendant No. 7 Anil, and who admittedly acquired the suit-property by way of gift from Satish, father of the plaintiff, was married to that Satish and died leaving Anil, her son by the first husband and Satish, her second husband, the suit property was to devolve both on Anil and Satish. in equal shares. And in that case, on the death of Satish, his half share in the suit property was to devolve on the plaintiff Gour, he being the son and only heir surviving satish. The plaintiff Gour would accordingly be clearly entitled to a decree for partition of half share of the suit property, if his father satish was married to Jamuna Bala, the mother of the defendant no. 7. The courts below, therefore, rightly realised that the only question involved in the suit before the trial court and in the appeal before the first appellate court was whether Jamunabala, mother of the defendant No. 7 Anil, was lawfully married to Satish, father of the plaintiff Gour. The trial court found against the marriage but the first appellate court had overturned such finding and has held in favour of the marriage.

(2.) LAW should, wherever possible, lean in favour of presuming every state of affairs to have a lawful origin. Both according to oriental as well as occidental concepts, the main object of law is to preserve, maintain and sustain the society and, as yet, our society very much germinates around the institution of marriage. That is why if a man and a. woman have been found to have lived together as man and wife for an appreciable length of time and have been treated and recognised by persons concerned as such man and wife, then, in the absence of evidence to the contrary, it may, not that it must, be presumed that such relationship is based on a lawful wedlock.

(3.) IT has been found by both the courts below that Satish and Jamuna lived together as" husband and wife for a considerably long period till the death of Jamuna. It has also been found that Satish recognised jamuna as his legally wedded second wife and her son Anil, the defendant no. 7, as his own son in the Deed of Gift, Ext. F, which is admittedly the charter of title for all the parties in respect of the suit property. There is a long and very weighty catena of authorities for the view that the fact of a man and woman living together as man and wife and the man acknowledging the woman's children as his own would give rise to a presumption that they are lawfully married and reference in this connection may be made, among others, to the decision of the Privy Council in Mohabbat Ali v. Muhammad ibahim, A. I. R. 1929 Privy Council 135 at 138 and to the decision of the Supreme Court in Gokal Chand v. Parvin Kumari, A. I. R. 1952 s. C. 231 at 233. In the Privy Council decision, the view of Division bench of the Lahore High Court in Indar Singh v. Thakar Singh A. I. R. 1921 Lahore 20 at 21 to the effect Chat the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years and that this presumption of law can be repelled only by strong, distinct and conclusive evidence, was approved. In Gokal Chand (supra), the Supreme Court observed that "it is well-settled that continuous cohabitation for a number of years may raise a presumption of marriage". The Supreme Court pointed out that if a man and woman lived and were treated as husband and wife for a number of years, then, in the absence of any material pointing to the contrary conclusion, a presumption could be drawn that they were lawfully married.