Kochan Nadar Yoven Nadar vs Rayappan Nadar Varuvel Nadar

T.K. Joseph, J.—Arulappan Marialom who died on 17-11-1119 owned a Marayam lease-hold interest in the property described in the plaint schedule. After his death, defendant 3 on her own behalf and as guardian of her child, defendant 2, assigned the lease-hold right to defendant 1 under Ext. IV dated 20-11-1119. The defendant 3 described herself as the widow of deceased Marialom and defendant 2 was said to be their daughter. The plaintiff 1 is a paternal uncle of Marialom and plaintiff 2, the son of another uncle. They sued for cancellation of Ext. IV on the ground that the defendants 2 and 3 were not the child and widow of Marialom. All the defendants contested the suit. Their contention was that defendant 3 was the lawfully wedded wife of Marialom and that defendant 2 was their child, born in wed-lock. The trial court dismissed the suit upholding the defence contentions. On appeal, the decree was reversed and Ext. IV was set aside. The defendant 1 has preferred this Second Appeal from the decree of the lower appellate court.

The only question for decision is whether defendant 3 was married by Marialom and whether defendant 2 is their child. It was admitted by both sides that Marialom and defendant 3 were Roman Catholic Christians. The trial court found that a marriage according to Christian rites could not have taken place. This would have been sufficient to decree the suit but the learned Munsiff held that it was undesirable to examine the truth and validity of every alleged marriage, either with reference to strict canon law or orthodox Hindu law and that the circumstances of the case showed that marriage of Marialom with defendant 3 was true, whether in the Christian form or in the Hindu form. The latter part of the finding is clearly unsustainable because the parties could contract a valid marriage only according to Christian rites. The learned District Judge confirmed the finding of the trial court that a marriage according to Christian rites was not proved. Thus, there is a concurrent finding that defendant 3 was not married to Marialom according to Christian rites.

Notwithstanding the concurrent finding on this question it was strenuously contended by the learned counsel for the appellant that as the parties lived together as husband and wife until Marialom died, it should be presumed that there was a valid marriage. No doubt a presumption of marriage can be drawn from cohabitation for a long time. Reliance was placed on the dictum in - ''Sastry Velaider Aregonary v. Sambonade'', (1881) 6 A.C. 364 (A), that where a man and a woman have lived together as man and wife, the law will presume unless the contrary be clearly proved that they were living together by virtue of a legal marriage and not in concubinage. The dictum in - ''In Re Shephard; George v. Theyar'', (1904) 1 Ch. 456 (B), where it was held that where a man and a woman intended to be married and lived afterwards together as man and wife, their cohabitation was matrimonial and not concubinage, though the facts showed that it was impossible for a valid marriage or any part of the ceremony in a valid marriage to have taken place between them, was also relied on.

It may be mentioned that Eversley in his treatise on the law of Domestic Relations has stated that the latter case went further than any other authority and could scarcely be deemed rightly decided. The courts generally presume marriage where the matrimonial intent can be shown to exist, but this presumption is not an irrebuttable one. Where the fact of marriage is admitted or proved it may be safe to presume that the marriage is unquestioned. As stated earlier, it was admitted that the parties were Roman Catholic Christians. It was defendant 1''s case that the parties wanted to get married in the month of December and as marriages during that month were prohibited by the Church, the ceremony of marriage was performed according to Hindu rites. This was not the case of defendant 3 who stated that the marriage was solemnised according to Christian rites. It was admitted by all the defence witnesses that the marriage was not solemnised in any Church and that no priest officiated at the ceremony. The defendant 3 who was examined as D.W. 5 stated that a Catachist or Upadesi'' was present at the ceremony which was conducted at their residence and that he did not conduct the ceremony. According to defence witnesses 2 and 5 there were records in the Church to show that the marriage did take place. Such records were not produced in the case. It is unnecessary to examine the evidence in detail in view of the admissions of the parties that the man and woman were Roman Catholic Christians, that the alleged marriage did not take place in a Church and that no priest officiated at the ceremony. These admissions clearly show that a Christian marriage could not have taken place. A marriage according to Christian rites alone would be valid when both parties are Christians and as such a marriage did not take place, the finding of the courts below on this question has to be upheld. The fact that a few weeks before the date of the alleged marriage a document was executed to provide dowry for the marriage contemplated between defendant 3 and Marialom is of no consequence in view of the admissions regarding the so-called marriage.

It follows from the above finding that defendant 3 is not the widow of Marialom. The defendant 2 cannot in these circumstances be considered to be a legitimate child entitled to inherit Marialom''s properties. Children who are entitled to succeed under the Christian Succession Act are only legitimate children. The defendants 2 and 3 were not heirs of Marialom and they were not entitled to deal with Marialom''s properties.

In the result, the decree of lower appellate court is confirmed and the Second Appeal is dismissed with costs.