1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.166 OF 2011 WITH SECOND APPEAL NO.104 OF 2011. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 27.04.2011. 1. Heard. 2. The appellants in S.A.No.166/2011 are the original plaintiffs who had filed suit for partition and separate possession. The trial Court dismissed the suit. The plaintiffs preferred an appeal. The appellate Court partly allowed the appeal. The appellate Court dismissed the suit to the extent of plaintiff No.1 and partly decreed the suit granting share to plaintiff Nos.2 and 3 from the share of Dagdu i.e. granting plaintiff Nos.2 and 3 1/10th share. 3. The plaintiffs and defendants being 2 aggrieved by the said judgment have filed respective Second Appeals. 4. Mr.Kulkarni, learned counsel for the appellants contends that the reasoning given by the District Court for negativing the case of the plaintiff No.1 about her valid marriage with Dagdu is highly improbable and not in consonance with the record and the evidence. The same is based on hypothetical consideration which could not have been a basis for the Court to come to any conclusive conclusion. According to learned counsel, the plaintiff No.1 has stepped into the witness box and has deposed about the factum of marriage. The same should have been relied upon. The learned counsel further contends that even the shares which are carved out are not in consonance with the provisions of the Hindu Succession Act and equal share should have been given to all the plaintiffs in the suit properties. 5. Per contra, Mr.Rohile, learned counsel for the defendants submits that even the District Court has wrongly granted shares to plaintiffs 3 Nos.2 and 3. The plaintiffs Nos.2 and 3 would be entitled to the share only if the marriage between the plaintiff No.1 and Dagdu is either proved to be a void or voidable marriage. In the present case there was no marriage between the plaintiff No.1 and Dagdu and the plaintiff No.1 was just residing as a Dasi. In absence of performance of marriage even the plaintiffs Nos.2 and 3 would not be entitled for any share. For the said purpose the learned counsel relies on the judgment of the learned Single Judge of the Kerala High Court in a case of "Chodon Puthiyoth Shyamalavalli Amma and others Vs. Kavalam Jisha and another" AIR 2007 Kerala 246. 6. With the assistance of the learned counsel, I have gone through the judgments. The fact that plaintiff No.1 was continuously residing with the deceased Dagdu is not disputed. It is also not disputed that plaintiff Nos.2 and 3 are born to plaintiff No.1 from Dagdu. The long standing cohabitation would give presumption to a marriage. It is because of the fact that Laxmibai 4 is the first wife of Dagdu and the plaintiff No.1 could not bring on record any evidence to show that after the death of Laxmibai, the plaintiff No. 1 married with Dagdu, the Court has held that plaintiff No.1 can not be said to be legally wedded wife. In para 27 of the judgment the District Court has considered the same. The year in which Laxmibai expired is not brought on record nor the year of marriage of plaintiff No.1 with Dagdu is brought on record. As the first marriage is admitted then unless it is proved that plaintiff No.1's marriage with Dagdu was after death of Laxmibai, the plaintiff No.1 would not be deemed to be a legally wedded wife but then that would not mean that no marriage had taken place. In view of the undisputed fact that plaintiff No.1 was continuously residing and cohabiting with Dagdu for considerable long period and also the undisputed fact that plaintiff Nos.2 and 3 are children of Dagdu born from plaintiff No.1, the plaintiffs Nos.2 and 3 would be entitled in the share of Dagdu. The judgment in a case of "Chodon Puthiyoth Shyamalavalli 5 Amma and others Vs. Kavalam Jisha and another" referred supra would not apply. 7. In light of the above, both the Second Appeals being sans substantial questions of law are dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.27.04.2011. asp/office/sa166.11