G.C. Mital, J. - (1.) Sohan Singh filed a suit for perpetual injunction restraining Harbans Singh and other defendants from interfering in his tenancy rights in respect of the agricultural land measuring 28 Kanals, 13 Marlas, By seeking amendment of the plaint, alternative relief of decree for possession was claimed in case it was found that the plaintiff was dispossessed. The trial Court decreed the suit and the defendants filed appeal before the lower Appellate Court. While the appeal was pending, Sohan Singh plaintiff died on 18-10-1979. His widow Harbans Kaur, two sons and four daughters filed an application for being brought on record as his legal representatives. That application was contested by the defendant appellants, who pleaded that Sohan Singh had no living wife at the time of his death, nor he had any children and as such the applicants were not his legal representatives. In view of the dispute, the lower Appellate Court exercised its jurisdiction under Order 22, Rule 5 of the Code of Civil Procedure and remitted the case to the trial Court for recording evidence and for submitting its opinion on the evidence recorded. The trial Court recorded evidence and submitted its detailed opinion to the lower Appellate Court. The lower Appellate Court on the basis of the evidence and the opinion expressed by the trial Court came to the conclusion that Harbans Kaur was not proved to be the legally wedded wife of Sohan Singh but was proved to have been living and cohabiting with him for a long time as a result of which six children were born to her. It was further held that in law illegitimate children were entitled to maintenance from the estate of the deceased and, therefore, they were entitled to be brought on the record. By the time the decision was taken by the lower Appellate Court, one daughter had died and, therefore, her two sons and three daughters were allowed to be brought on the record as legal representatives. The order of the lower Appellate Court in this behalf is dated 16-5-1981. Against the aforesaid order, Civil Revision No. 1342 of 1981 has been filed by the defendants to contest that part of the order by which five illegitimate children were impleaded as legal representatives of Sohan Singh deceased; whereas Civil Revision No. 2781 of 1981 was filed by Dyal Singh, one of the legal representatives brought on the record, to challenge the finding of the Court below that he was illegitimate son of Sohan Singh deceased because Harbans Kaur was not his legally wedded wife. Since both the matters arise out of the same order, both these revision petitions are being disposed of by this common judgment.
(2.) After hearing the learned counsel for the parties I am of the view that the revision filed by the defendants (C.R. No. 1342 of 1981) deserves to be dismissed and the revision filed by the legal representatives of Sohan Singh deceased (C.R. No. 2781 of 1981) deserves to be allowed. It has been held by the highest Court in Gokal Chand Vs. Parvin Kumari, A.I.R. 1952 Supreme Court 231 , that presumption of marriage can be raised from long living and cohabitation although on the peculiar facts of that case, it was held that the marriage was not proved. In the present case, even according to the finding of the Court below, Sohan Singh and Harbans Kaur lived and cohabited together for a long time and out of such cohabitation as many as six children were born. These facts in law are sufficient to raise the presumption of marriage between the two and the defendants have wholly failed to rebut the presumption. The defendants could disprove the marriage or rebut the presumption but they have wholly failed to de so. Sometimes the marriages, which took place long time back in village, may not be proved by oral and documentary evidence because after the death of the male owner, other villagers may not support the widow and there may be no relations of hers who may be available to give evidence about the marriage. That is why, it has been ruled that long living and co-habitation raises the presumption of carriage which is always rebuttable, Accordingly, I hold that Smt. Harbans Kaur was the legally wedded wife of Sohan Singh with the result the five children, who have been brought on record including Dyal Singh, are legitimate children of Sohan Singh deceased and the finding to the contrary recorded by the Court below, is hereby reversed.
(3.) Coming to the revision petition filed by the defendants, in view of the aforesaid finding, the same has become wholly infructuous. All the same, I would deal with that matter also. The learned counsel for the defendants could not successfully assail the finding of the Court below that Smt. Harbans Kaur had been living and cohabiting with Solian Singh deceased for a long time as a result of which six children were born to her who have been termed as illegitimate. Therefore, I will proceed to consider whether the illegitimate children could be brought on the record as legal representatives or not ? The learned counsel for the defendants strenuously urged that illegitimate children do not inherit the estate and, therefore, have no right whatsoever in the land in dispute and cannot be allowed to become parties to the proceedings. It is true that the illegitimate children do not succeed to the estate but they are entitled to maintenance in law from the estate of their illegitimate father. If the estate of the illegitimate father is lost, nothing would be left for the illegitimate children to claim maintenance and, therefore, they are very much interested in the litigation so that the property in dispute may be retained as the property of their, illegitimate father Sohan Singh and they can maintain themselves from that estate. Moreover, the definition of legal representatives shows that it includes inter meddlers also. The illegitimate children in law would be certainly in a better position than an inter meddler. Viewing the case from any angle, the Court below was justified in impleading the so-called illegitimate children as legal representatives of Sohan Singh deceased.;