Full Judgment Text
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PETITIONER:
SRI CHOWDEGOWDA @ DORJI [ DEAD ] BY LRS. & ORS
Vs.
RESPONDENT:
C. NAGARAJU & ORS.
DATE OF JUDGMENT: 05/08/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (7) 638 1996 SCALE (6)162
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
Since this is a long drawn litigation for over 37 years
we think it appropriate to give quick end to the litigation
instead of remanding the matter to the High Court for
further remanding it to the appellate Court. It is not in
dispute that Machine Chowdegowda, the father of the
appellant had three brothers. The suit came to be filed for
partition of 10 acres of wet land, 5.30 acres of dry land,
30 gunthas of house site into four equal parts and 1/8th
share towards the appellant-plaintiff. At three stages, the
suit came to be dismissed and ultimately in the second
appeal No.204/94, by judgment and decree dated March 17,
1995 the High Court of Karnataka confirmed the dismissal of
the suit. Thus this appeal by special leave.
There is evidence in this case Exs. P-1, P-4 and P-36
which would indicate that Machine Chowdegowda had described
the appellant to be the son born to his first wife,
Siddamma. It is seen that there is a controversy as regards
the factum of the customary marriage by name Kuduvali
marriage which seems to have taken place in early 1920.
Under those circumstances, at the distance of 40 years it
would be difficult to prove with certainly of evidence of
the factum of the marriage etc. But the meat of the fact is
that Siddamma and Machine Chowdegowda lived together as wife
and husband and the appellant came to be born from the wed-
lock. Under those circumstances, the presumption of valid
marriage and as to appellant having been born legitimately
out of the that marriage through Machine Chowdegowda could
be drawn. This is the legal position settled by this Court
In Badri Prasad v. Deputy Director of Consolidation [(1978)
3 SCC 527], Sumitra Devi v. Bhikan Choudhary [(1985) 1 SCC
637] and S.P.S. Balasubramanyan v. Suruttayan [(1994) 1 SCc
460]. The appellant must, therefore, be presumed to be a
legitimate son of machine Chowdegowda. Accordingly, the
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appellant is granted one acre of the wet land and the rest
of the land will be given to the respondents according tot
he respective shares. A preliminary decree be drawn and an
application to pass final decree be made and dealt with by
the trial Court.
The appeal is accordingly allowed. No costs.