R.M.Sahai, J. - (1.) ON facts found by the consolidation authorities the questions that need determination are whether presumption of legal marriage could be raised where two persons lived together as husband and wife for twenty eight years. And if it be so what would be the course of devolution on the death under Zamindari Abolition Act. Shall the property revert to the heirs of male tenant under Section 171, as the property having been inherited as widow the law does not require continuance of widowhood on the date of death or as a result of remarriage the widow lost her right and title and acquired fresh rights which devolved on her heirs under Section 174.
(2.) IT is admitted that Chain Singh was occupancy tenant who died thirty years prior to the date of vesting leaving his widow Sukhia. After two years Sukhia, to use the expression of opposite party in her deposition, "Gopal Singh ke Sath Baith Gai" but she continued in possession of the property till her death in 1965. From the wedlock of Gopal and Sukhia was born Chandra Pal, Petitioner. After her death dispute arose between Petitioner and opposite party No. 4 Smt. Maina, sister of Chain Singh for mutation. The order was against the Petitioner. He therefore filed a suit for declaration under Section 229B of Z.A. Act which was dismissed in default. The Petitioner on enforcement of Consolidation filed his objection under Section 9A of U.P. Consolidation of Holdings Act giving rise to this petition. It was rejected by all the consolidation authorities on the finding that Sukhia's marriage with Gopal was not legal and she continued in possession as widow of Chain Singh. The basis for finding that she was widow of Chain Singh was entry in Kutumb register showing Sukhia as widow of Chain Singh. The appellate authority held "there is no positive evidence about marriage of Smt. Sukhia. If Sri Chandra Pal was born with the union of Gopal, he is entitled to inherit only when he was born as a result of legal marriage. The widow's remarriage was legalised as far back as 1865 by Hindu Widow Remarriage Act. It was not and is not disputed that Sukhia and Gopal lived as husband and wife. In fact the opposite party admitted that the marriage was in Karaon form (form of marriage prevalent among others than twice' born). The appellate authority felt difficulty in accepting it, as legal marriage, because ceremonies were not proved. In Badri Prasad v. Deputy Director of Consolidation : AIR 1978 SC 1557 it was held: 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 Sri 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 woman 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. In view of this pronouncement legality of marriage has to be presumed particularly when opposite party admitted that Sukhia married in Karao form. The living together of a man and woman as husband and wife, and recognised, as such, by society gives rise to presumption that they were married unless proved otherwise. The presumption being in favour of Petitioner the burden to rebut it was on opposite party. The appellate authority therefore committed an error of law in holding that the marriage was not legal as there was no positive evidence. The entry in Kutumb register recording Sukhia as widow of Chain Singh was obviously incorrect. And in any case it did not rebut the presumption which arose under law. The finding that Sukhia continued to be widow of Chain Singh suffers from a manifest error of law.
(3.) THE question then is the legal consequences of Sukhia's remarriage and her continuous possession over her former husband's property. According to the Learned Counsel for the Petitioner the effect of the remarriage was that the tenancy which Sukhia inherited from her husband stood extinguished and succession opened in favour of the heirs of the last male tenants. As there was no heir under Section 35 of the Tenancy Act the tenancy stood extinguished under Section 45(a). The effect of extinction and her continuance in possession, thereafter, was contrary to provisions of law in force and she acquired rights of her own both under the Tenancy Act and under Zamindari Abolition Act. The tenancy which was thus acquired, according to the Learned Counsel for the Petitioner, was her own and she was an absolute owner at the time of her death in 1965. The succession therefore would be governed under Section 174. On the other hand the Learned Counsel for the opposite party relied on Lurkhur v. Jhuri, 1972 AWR 315 which was followed in : 1976 AWC 809 and 654. It was urged that once it was established that Srat. Sukhia inherited as a widow, the succession on her death shall be governed under Section 172(2) and not under Section 174. As it does not require that the widow who inherited the interest in the holding of her husband should have died as a widow.;