JUDGMENT

Shivashankar Bhat, J.

1. Defendants 1 and 3 are the appellants. The 1st plaintiff is the mother and plaintiffs-2 to 6 are children. The plaintiffs sought partition of the properties claiming them to be the properties left behind by one M.D. Ramanna Shetty, who died on 2nd September 1979. The 1st plaintiff claims to be the wife of the deceased. The 1st defendant also is another wife. The 9th defendant is stated to be the 2nd wife, while the 1st plaintiff is stated to be the 3rd wife. Defendants-2 to 8 are the children of the 1st defendant. Defendants-10 to 12 are the children of one Pushpavathi the deceased daughter of the 9th defendant through M.D. Ramanna Shetty, 6/16th share is claimed by the plaintiffs on the ground that the parties are governed by the Aliyasantana Law of inheritance.

2. Defendants-1 and 3 to 8 filed a common written statement. They admitted that Ramanna Shetty died intestate. However, they denied the status of the 1st plaintiff and of the 9th defendant as the wives of deceased Ramanna Shetty. According to them, .the husband of 1st plaintiff was one Chinnaiah Shetty and the husband of the 9th defendant was Kittana Shetty. They also asserted that they were not in possession of the properties described in the plaint schedules. The 2nd defendant in her written statement contended that Ramanna Shetty left a Will and his properties are to be distributed in terms of the said Will. She did not dispute the status of the 1st plaintiff and the 9th defendant. It seems under the will a substantial part of the assets left by Ramanna Shetty was bequeathed in favour, of the 2nd defendant.

3. Defendants-9 to 12 also support the case of the plaintiffs. They asserted that the plaintiffs were already in possession of some of the properties left by Ramanna Shetty, Defendants-13 to 18 are purchasers of a few items of the property originally belonged to Ramanna Shetty. It is unnecessary to refer to their statement. The Trial Court framed the following issues:

(1) Whether the plaintiffs and defendants 9 to 12 are the heirs of Ramanna Shetty and entitled to a share in the plaint A, B and C schedule properties and assets?

(2) What were the assets left by Ramanna Shetty?

(3) Whether the plaintiffs are entitled to an accounting of the income of the plaint properties from the date of the plaint and if so at what rate and from whom?

(4) To what share are the plaintiffs entitled?

(5) Whether the 2nd defendant proves that Ramanna Shetty has executed a valid will on 9.8.1979 and plaintiffs are disentitled to claim partition on account of the said will?

(6) Whether the properties, mentioned in schedule A of the written statement of the second defendant is a partible asset, as contended?

(7) Whether the suit has been properly valued for court-fees and jurisdiction?

(8) What order as to costs?

(9) To what reliefs?

4. Issues-6 and 7 were deleted as unnecessary. Issues No.2 and 3 were left open for consideration in final decree proceedings. Under Issue No. 5 it was held that no valid will was left by Ramanna Shetty and consequently the case of the 2nd defendant was not accepted. Under Issue No. 1, it was held, that plaintiffs as well as defendants 9 to 12 are also the heirs of Ramanna Shetty. The Trial Court found that 1st plaintiff as well as the 9th defendant were married to Ramanna Shetty and therefore the said persons and their children are entitled to their respective shares in the properties left behind by Ramanna Shetty. It was also held that each of the plaintiff is entitled to 1/16th share in the properties.

5. The 2nd defendant has not filed any appeal and therefore the finding regarding the non-binding nature of the alleged will has become final. The substantial question for our consideration is whether the 1st plaintiff and 9th defendant were the wives of Ramanna Shetty and if so, what will be the share of the plaintiffs and others in the assets left by Ramanna Shetty.

6. M.D. Ramanna Shetty died on 2nd September 1979. According to the plaint, he left behind 3 wives - the 1st plaintiff, the 1st defendant and 9th defendant. There is no dispute as far as the status of the 1st defendant is concerned. Plaintiffs-2 to 6 are the children of the 1st plaintiff. They seek a share in the assets left by M.D. Ramanna Shetty. The 1st defendant questioned the status of the 1st plaintiff and the 9th defendant while the 2nd defendant put-forth a will allegedly left by M.D. Ramanna Shetty. She however did not deny the status of the 1st plaintiff and of the 9th defendant.

7. Mr.Padubidri Raghavendra Rao contended that in view of the provisions of the Malabar Marriage Act, 1886 [1896], M.D. Ramanna Shetty could not have married more than one wife and consequently the 1st plaintiff and the 9th defendant cannot under law be considered as the wives of the deceased. Alternatively, it was contended that the actual proof of marriage and recognition of these persons as the wives of the deceased, by the society is not forthcoming in the instant case.

8. Malabar Marriage Act was enacted in the year 1886. It defines the term "Sambandham" as an alliance between a man and a woman by reason of which they, in accordance with the custom of the community to which they belong or either of them belongs, cohabit or intend to cohabit as husband and wife. The term 'Marriage' is also defined as follows:-

"Marriage" with its grammatical variations and cognate expressions means, except in Section 3 Clause (a), the last word of Section 3, Clause (c), Section 15, Clause (a), and the fast word of Section 15, Clause (c), a Sambandham registered under the provisions of this act."

Section 3 of the said Act provides for the registration of a Sambandham. However, this registration is purely optional for enabling the registration, certain conditions require to be satisfied. One such condition is that neither party must at the date of the notice for registration have a husband or wife living whose Sambandham with her or him has been registered under the said Act and which marriage is not null and void under Section 15 or with whom she or he is otherwise legally married. Since registration under Section 3 is not compulsory, it has been recognised that for a valid marriage of the persons covered by the Act one need not get the relationship registered. The preamble to the Act itself states that it was expedient to enable persons following the Marumakkattayam or the Aliyasantana Law of Inheritance to contract marriages which shall be recognised by Court of law as legal marriages and to provide for the issue of such marriages. This Act was enacted obviously because of certain doubt cast about the sanctity of these customary relationships as a valid marriage by the Madras High Court. To safeguard the interests of those who get married under the customary procedure and to clarify the position so that those who are interested in getting the relationship recognised as a marriage, the aforesaid Act must have been enacted. Section 3 nowhere bars the marriage under the customary procedure. It bars the registration of a Sambandham if already a registration of another Sambandham has been done under Section 3 in respect of one of the parties. It is quite clear that if the first Sambandham is not registered and a man enters into another Sambandham, the second Sambandham can be registered under Section 3 since the first Sambandham was not registered. This itself indicates that this Act has nothing to do with the prohibition against bigamous marriages.

9. Section 15 was relied upon by the learned Counsel for the Appellants. Sub-section (1) of Section 15 which is relevant reads thus:-

"15(1) A marriage shall be null and void only -

(a) If either party is subject to a personal law of marriage according to which he or she as the case may be cannot validly contract a marriage with the other.

(b) If a relationship can be traced between the parties through some common ancestor who stands to each of them in a nearer relationship than that of great-greatgrandfather or great-great-grandmother, and by reason of such relationship a Sambandham between them is prohibited by any customs or usage applicable to the community to which they belong or either of them belongs.

(c) If either party has a husband or wife living whose Sambandham with such party has been registered as a marriage under this Act and such marriage is not null and void under Clauses (a) and (b) of Sub-section (1) or with whom she or he has been otherwise legally married."

Emphasis was given to Sub-clause (c) and it was pointed out that a marriage shall not be valid if either party has a husband or wife living whose Sambandham with such party has been registered or if either party has a spouse living which Sambandham has been registered and with whom she or he has been otherwise legally married.

10. The above interpretation does not flow out of Section 15(1)(c) at all. The above prohibition nullifies a marriage if either party has a husband or wife living whose Sambandham with such party has been registered as a marriage under the said Act and such a registered marriage is not null and void under Sub-clauses (a) and (b). The effect of Section 15(1)(c) is to nullify a marriage in the case of a man if he has another wife living and that Sambandham with the other wife has been registered and if such marriage is not null and void or if the marriage with the other wife was the result of a legal marriage. But the definition of the term 'Marriage' specifically excludes application of the definition on the word "Marriage" found as the last word in Section 15, Clause (c). The Section no doubt is not very happily worded, but it is clear that the definition of the term "Marriage" is not made applicable to several provisions of the Act. Therefore, it is not possible to hold that there was a bar against a second marriage under Section 15. Further, the definition of the marriage has to be understood in the context of the provision for registration under the Act. Sub-clause (a) of Section 15(1) very clearly preserves the operation of the personal law of marriage according to which if a person cannot validly contract a marriage with another, only then the marriage shall be void. In other words if the personal law recognises a particular marriage as valid, the Act does not take away that recognition.

11. The material on record shows that the marriages of M.D. Ramanna Shetty were prior to the year 1949. In the year 1949, Madras Aliyasantana Act, 1949, was enacted. This Act repeals the Malabar Marriage Act under Section 2. We do not find any saving provision which would preserve the liabilities incurred under the repealed enactment. Section 4 of the Aliyasantana Act so far as it is relevant for our purpose reads thus:-

"4(1): Save as provided in Section 5, the conjugal union of an Aliyasantana female with -

(i) a male belonging to the same community as such female, or

(ii) a male not belonging to such community and whether governed by the Aliyasantana Law or not, but being a Hindu or Jain, shall be deemed for all purposes to be a legal marriage, if-

(b) the union -

(i) was before the date on which this Act comes into force openly solemnized in accordance with the customary ceremonies prevailing in the community to which the parties belong or recognised by the community as a valid marriage."

Section 5 states that during the continuance of a prior marriage which is valid under Section 4, any marriage contracted by either of the parties thereto after the date on which this Act came into force shall be void. Therefore, the bar against the second marriage was operative in respect of the marriage contracted after the date of the said enactment. By virtue of Section 4(1)(b), it is clear that any union solemnized openly in accordance with the customary ceremonies prevailing in the community will be a valid marriage when the said union was before the date of the enactment.

12. This provision fully operates in the instant case in favour of the 1st plaintiff and the 9th defendant. There is no dispute that the alleged marriages were prior to the date of coming into force of the Madras Aliyasantana Act. Therefore, if the union between M.D. Ramanna Shetty and the 1st plaintiff or with the 9th defendant was solemnized in accordance with the customary ceremonies prevailing amongst the Aliyasantana people, the marriages shall have to be recognised as a legal marriage.

13. The next question that requires consideration is, whether the alleged marriages were duly solemnized, in case the alleged marriages were proved.

14. There was no prescribed formality to be complied with for a valid marriage. Formalities differ from Country to Country and people to people. A marriage essentially is a union either religious or contractual between a man and a woman which is respected by the society. Different societies have evolved different formalities to be undergone by the parties for recognition by the society as constituting a valid marriage. The validity of a particular marriage cannot be tested in the background of one's own personal law. For an Englishman the union between a man and a woman duly solemnized under the personal law of persons governed by Aiiyasantana law may look strange and obviously this resulted in certain observations of the Madras High Court in the year 1883 doubting such a union as not a marriage forgetting that for centuries together, these persons have been following certain formalities and the union thus arrived at was considered as a valid marriage by the people amongst whom they have been living respecting the offsprings as legitimate children.

15. "........ the habit and repute, which alone is effective, is habit and repute of that particular status which, in the country in question, is lawful marriage"; observed, the Privy Council in Ma Wun Di v. Makin, 18 Madras L.J. 3.

The basic test is, whether the customary procedure for a marriage has been recognised as constituting a valid marriage by the people concerned unless there is any other specific legal prescription to constitute a valid marriage.

16. In "Treatise on Malabar and Aliyasantana Law" by P.R. Sundara Aiyar, published in the year 1922, there is a Chapter on marriage. The learned Author points out that the term "Sambandham is the generic term applied in Malabar to marriage as understood by the Marumakkathayom communities. At page 201, it is stated that there is a social and customary marriage in South Canara also though there is nothing corresponding to Talikattu Kalyanam. There is no restriction as to marriageable age or on polygamy. In the ordinary forms of marriage, it is stated that there is the practice of Dhare or joining of hands with a gindi or vessel of water upon them placed by the parents and the karnavans of the couple. In some places, there is the practice of even pouring the water. The learned Author also points out that in the case of remarriage of widows, there is a curious rule whereby only a widower is permitted to marry a widow and there is a special form for such marriages.

17. The marriage of the 1st plaintiff with M.D. Ramanna Shetty was spoken to by P.Ws. 1 to 3. Similarly, the 9th defendant also as D.W.1 admitted that there was a marriage between the 1st plaintiff and M.D. Ramanna Shetty. The main attack of the learned Counsel for the Appellants is that the depositions of P.Ws. 1 to 3 do not mutually corroborate regarding certain particulars. For example, P.W. 1 stated that her marriage was performed at Mangalore in Mangala Devi Temple and her two elder brother attended the marriage, who are alive. She denied a suggestion that she was remarried to one Chinnaiah Shetty. There is absolutely no evidence on record even to indicate such a marriage. Chinnaiah Shetty's background and whereabouts are not forthcoming. P.W.3 stated that he attended the wedding between the 1st plaintiff and M.D. Ramanna Shetty, but he was not able to give the name of the temple priest. He speaks to the Dhare ceremony. He also states that there was a Homa before the marriage. No other witness speaks to this Homa at all, is the contention of Mr.Padubidri Raghavendra Rao. It should be noted that the witnesses were speaking after several decades of the marriage. The details of the marriage may not be forthcoming. But the fact remains that P.W.1 has been residing with M.D. Ramanna Shetty and she has given birth to several children. She has produced the Invitation Cards printed on the occasion of the marriages of some of her children in which Ramanna Shetty was shown as the father of child. The material on record is quite abundant to establish that Ramanna Shetty had several properties acquired by him at different places. Obviously he had set up different houses at different places with different wives. Ext. P. 16 to P.23 are the extracts from the birth registers and marriage invitation cards. Even the birth extracts show that the father of the newly born child of the first plaintiff, was M.D. Ramanna Shetty. The Trial Court has considered the evidence elaborately and since we are in agreement with the finding of the Trial Court, we don' think it necessary to repeat the discussion once again here.

18. As to the marriage of 9th defendant with M.D. Ramanna Shetty, the evidence is more clinching. Apart from other material on record, there is a clear admission by Ramanna Shetty himself that the 9th defendant was his wife. In the year 1953, a property was purchased in the name of the 9th defendant. The Sale Deed refers to the payment made by M.D. Ramanna Shetty on behalf of the 9th defendant (Ext.D.2 and Ext.D.11). The recital in the deeds Ext.D.2 and Ext.D.11 describes the 9th defendant as the second wife of M.D. Ramanna Shetty. Ext.D.3 was also signed by M.D. Ramanna Shetty. Similarly, a Bank account was opened as per Ext.D.20 jointly in the name of 9th defendant and M.D. Ramanna Shetty. The 9th defendant was described as the 'wife' of M.D. Ramanna Shetty. Indisputably, Ramanna Shetty was living with the 9th defendant for a considerable period and he was also moving about from one place to another.

19. Mr. Padubidri Raghavendra Rao's contention, is that no independent person has been examined by any one of these parties to prove the marriage and to prove the notoriety of these marriages. We do not think that this is a case which requires such evidence on every aspect of the proof regarding a marriage. One another circumstance which we consider as relevant requires to be stated. The parties are governed by Aliyasantana Law and all of them are "Bunts". In olden days, it was quite normal for a person to have more than one wife. Very rarely, a 'Bunt' lady would go as a kept mistress because essentially 'Bunts' belong to a landed class and further, whatever may be the financial condition of the family, the parents of a girl would not permit the girl to go and live with some one else as a 'Kept Mistress'. It is quite likely that because of the vast properties acquired by Ramanna Shetty, he was able to persuade the parents of the 1st plaintiff and the 9th defendant to give them in marriage to him at different times. Both the 9th defendant and the 1st plaintiff asserted that at the time of their respective marriages, they were unaware of the earlier marriage of M.D. Ramanna Shetty. This may be an extreme statement. We do not think that this statement by itself would be a ground to discard the general impression" to be gained by the evidence on record. The probabilities of the case is that the 1st plaintiff and 9th defendant were duly married to the deceased Ramanna Shetty.

20. The appropriate principle to be applied is the one found in the Decision of the Supreme Court in BADRI PRASAD v. DY. DIRECTOR OF CONSOLIDATION AND ORS., the entire Judgment could be quoted because it is a very short one:-

"For around 50 years, a man and a woman, as the facts in this case unfold, lived as husband and wife. An adventurist challenge to the factum of marriage between the two, by the petitioner in this special leave petition, has been negatived by the High Court. A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. In this view, the contention of Shri Garg, for the petitioner, that long after the alleged marriage, evidence has not been produced to sustain its ceremonial process by examining the priest or other witnesses deserves no consideration. If man and women who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed. The contention deserves to be negatived and we do so without hesitation."

21. The inclination of the Courts would be always be in favour of finding legitimacy in the relationship between a man and woman who have been living together giving birth to several children.

22. To what extent the purchase of the properties by defendants - 13 to 18 is valid is a matter to be decided in the final decree proceedings and it is also for the Trial Court to adjust the equities appropriately while effecting the partition. It is not necessary for us to go into the said question, In fact, that Trial Court also has not gone into the said question. However, a clarification is necessary. M.D. Ramanna Shetty died in the year 1979 after the coming into force of the Hindu Succession Act, 1956. While computing the shares of the heirs, the said Act requires one share to be allotted to all the widows. In other words, the three widows in the instant case will be entitled to one share equivalent to that of child as per Section 10, Therefore, the conclusion of the Trial Court that each sharer will be entitled to 1/16th share is not correct. The 3 widows would have one share; there are 13 children of Ramanna Shetty. Therefore, each of them will be entitled to 1/14th share. 1/14th share in the total assets is to be allotted to the shares of the 3 widows and it shall have to be again divided equally amongst them, thereby each of them will be entitled to 1/42 while each child of Ramanna Shetty will be entitled to 1/14th. The Trial Court is directed to proceed with the matter according to law and the decree of the Trial Court is modified only to the extent of the computation of the shares, as above.

23. The Appeal is accordingly dismissed subject to the above modification of the Trial Court's decree. There shall be no order as to costs in this Appeal.