D.M. Dharmadhikari, J.@mdashThis second appeal is by the plaintiffs who lost in both the Courts below. The appeal has been admitted on the
following substantial questions of law, which arises for decision by this Court.
(i) Whether in the absence of any pleading and proof about the custom between the parties for the marriage in Pat form, the marriage in that form
will be a valid marriage?
(ii) Whether in the absence of proof of custom for performance of marriage in the Pat from no inference of the valid marriage can be drawn even
from long cohabitation.
2. The necessary facts are that the owner of the suit property was one Macha who died prior to 1956, survived by one son by name Radho who is
also dead and is represented now by his alleged wife Smt. Sundariya (respondent No. 1). The property in suit was sold by Sundariya (respondent
No. 1).. by four registered sale deeds Ex. D 1 to Ex. D4 dated 28.2.1978 in favour of respondents No. 2 to 5.
3. The suit originally was filed by two daughters of Macha namely Jhamlibai and Ramlibai. The above two plaintiffs are represented now by their
legal representatives/ appellants No. 1 to 3 and respondents No. 6 to 7. The suit was filed by two daughters of Macha challenging the alienation
made by respondent No. 1 Sundariya in favour of respondents No. 2 to 5, pleading inter alia that Sundariya was not the legally wedded wife of
deceased Radho and, therefore, had no right to alienate the property to which, the plaintiffs claim title by inheritance. Both the Courts below held
that presumption of valid marriage can be drawn between Radho and Sundariya on the basis of their long cohabitation as husband and wife. The
suit was, therefore, dismissed by both the Courts holding in favour of Sundariya that she alone inherited the property and had the right to sell the
same in favour of respondents No. 2 to 5.
4. Learned Counsel appearing for the appellants/plaintiffs, in this appeal, invited my attention to paragraph 6 of the plaint and paragraph 5 of the
written statement and contended that there was no proper plea of custom of PAT marriage set up by the defendants between Radho and
Sundariya and hence the evidence led of PAT marriage could not be looked into and relied upon in favour of Sundariya. Reliance is placed on the
decision in the case of Kochan Kani Kunjuraman Kani Vs. Mathevan Kani Sankaran Kani,
5. Learned Counsel appearing for the respondents, in reply submitted that due to long course of cohabitation as husband and wife between the
parties there was a presumption of valid marriage between them and the burden to rebut such presumption lay on the plaintiffs. In this connection it
was pointed out that the defendants examined witnesses to depose that both Radho and Sundariya had gone through a ceremony of PAT marriage
and lived as husband and wife thereafter. In reply it is also contended that there was no cross-examination on behalf of the plaintiff to -- deposition
of the witnesses examined by Sundariya that PAT marriage required only certain ceremonies and not all, such as Saptpadi and Hom.
6. I have myself looked into the pleadings of the parties and the relevant evidence led on the question of PAT marriage by defendant by examining
Bhaiyalal (D.W. 1) and Sohanlal (D.W. 2). It is settled law that a presumption of valid marriage can be drawn u/s 114 of the Evidence Act if there
is a long course of cohabitation as husband and wife between the parties. [Gokal Chand v. Parveen Kumari (AIR 1952 S.C. 231)]. Such a
presumption based on long course of cohabitation is, however, rebuttable. It is true that in this case the main contesting issue between the parties
was about the valid marriage between Radho and Sundariya. The case of the plaintiffs was that Sundariya was only a keep of Radho, whereas the
case of the defendants was that a ceremony of PAT marriage was gone through. It was, therefore, essential to plead eustom of such PAT marriage
in the Marar community, to which the parties belong. I, however, find that even in the absence of plea of such a custom when the avidence was led
by the dafendants. to prove such a custom by examining Bhaiyalal (D.W.1)and Sohanlal (D.W.2.) no objection based on such want of plea of
custom was raised by the plaintiffs in the Court below. It is also to be noted that the witnesses examined on behalf of the defendants Sundariya
deposed that ceremony of PAT marriage was only by tying in knots clothes of bride and the groom and taking of steps around a temple. The
plaintifts did not cross-examine the above named witnesses on the point that there did not exist any such custom of PAT marriage. The witnesses
examined by the plaintiffs also did not say in their depositions that there is no custom of PAT marriage in the Marar community. It is admitted by
the parties that Radho had lost his wife and Sundariya had lost her husband at the time when they went through ceremony of second marriage.
Plaintiff Jhamli Bai as P.W.1, in paragraph. 4 of her cross-examination admitted the fact that Radho and Sundariya had lived jointly as husband and
wife for a long period of about eleven years. In the state of above evidence led on the question of second marriage, the Courts below committed
no error in coming to a conclusion that validity of marriage is beyond question by the plaintiffs. In my opinion also, as in this case evidence was
allowed to be led without objection by the plaintiffs on the alleged fact of PAT marriage, the contention raised in the second appeal of want of
specific plea of custom cannot be accepted.
7. Consequently, this second appeal fails and is heredy dismissed with costs. Counsels frr shall be as per schedule if certified.