S.K. Ray, J.
1. This is a second appeal by the plaintiffs from the concurrent decision dated 5-8-66 of Sri D. Hota, Subordinate Judge. . Kendranara. passed in Title Appeal No. 73 of 1966/172 of 1965 by which the suit has been dismissed.
2. Plaintiffs brought the suit for setting aside the sale-deed dated 7-4-61 executed by defendant 6 in favour of defendant 1. and for declaration that neither defendant-1. nor the original defendant-6 had, nor the present defendants 6 to 8 have any right, title or interest over any part of the suit-land, and also for declaration that plaintiffs have title and possession over the suit-land -and for permanent iniunction restraining defendants 1 to 5 from disturbing their possession over the same.
3. Plaintiffs 1 to 3 had a brother, named Durga Charan. Plaintiff-4 is their mother. Durga Charan died unmarried in a state of iointness with them. Before, his death, he had been betrothed to defendantNo. 6. His marriage with defendant No. 6 could not take place on account of his death. Defendant-6 remained unmarried as nobodv else was willing to marry her as she had acquired an evil reputation on account of the death of Durga Charan to whom she had been betrothed.
There was no partition between deceased Durga Charan and his three surviving brothers, plaintiffs 1 to 3. The interest of Durga Charan. therefore, passed to these three plaintiffs by survivorship. Defendant-1, with the assistance of some agnates of the plaintiffs who were on litigating terms with them, set up defendant-6 as the widow of late Durea Charan. and obtained the impugned sale-deed (Ext. B).
It is alleged by the plaintiffs that the said sale was not for consideration and defendant-1, the vendee, did not take delivery of possession of the property purchased by him. The further allegation of the plaintiffs is that even if the sale is held to be valid and for consideration, defendant-6 has sold lands in excess of the share she would be entitled to as the widow of Durea Charan.
4. Defendants 2 to 5 are the sons of defendant-1. Original defendant-5 died durine pendency of the suit in the trial court and defendants 6. 7 and 8 were substituted in her place. The main contesting defendants are defendants 2 and 7. They traversed all the plaint allegations. Their case is that the deceased Durea Charan had married defendant-6. Her husband died in the year 1949. She was entitled to succeed to his interest in the joint family properties. The plaintiff pressed upon defendant-6 to dispose of her interest in the ioint family property in their favour which she refused. In consequence, she was put to various harassment. She, therefore, left the family, and went to live in her father's house. Subsequently in order to meet her maintenance and for purposes of pavine her loan, she sold the property to defendant-1. and delivered possession to the vendee.
5. The findines of the trial court are that the original defendant-6 was the wife of Dursa Charan. that the impugned sale-deed (Ext. B) executed in favour of defendant-1 was valid and for consideration: the plaintiffs have acquired no title over the suit-land by adverse possession, and that neither Durea Charan. nor his widow, defendant-6, was ousted from the use and occupation of the ioint family property, or any portion thereof for a sufficient length of time so as to extinguish their title to the property.
All these findings have been confirmed by the lower appellate court.
6. Two points have been urged in this appeal. The first is that the defendants have failed to prove the essentialsof a valid marriage, and as such, the find-ins of marriage between defendant-6 and Durea Charan cannot be sustained.
The second point was that defendant-6 sold lands in excess of her share, and in absence of any issue being framed on that point, the finding of the lower appellate court that Durga Charan's share was one-fifth in the ioint family property, and that the impugned sale-deed (Ext. B) will be considered to be valid with respect to lands in conformity with that one-fifth share, and invalid in respect of lands conveyed in excess of that share cannot be upheld.
7. Point No. 1: The plaintiffs disputed the factum of marriage of defendant-6 with Durga Charan. The validity of marriage on the ground that the essential ceremonies had not been performed was not raised in controversy. The defendants adduced evidence establishing this factum of marriage. Both the courts have come to a concurrent finding, on a consideration of both oral and documentary evidence on record which comprise acts of acknowledgment and recognition of the alleged marriage of defendant-6 with Durga Charan. that the marriage between them did. in fact, take place. When the factum is thus established, a presumption arises that all formal requisite ceremonies of a valid marriage had been performed.
It has been laid down by the Privy Council in the case of Mouji Lal v. Musammat Chandrabati Kumari: (38 Ind APD 122 (PC)) that:
'It is an extremely strong presumption in favour of the validity of a marriage and the legitimacy of its off-sprins that from the time of the alleged marriage the parties are recognized by all persons concerned as man and wife, and so described in important documents and on important occasions. The like presumption applies to the question whether the formal requisites of a valid marriage ceremony were satisfied.'
Following this, the Supreme Court has also held in the case Veerarjna Chettiar v. Michael, AIR 1963 SC 933. that where it is. proved that the marriage was performed in fact, the Court will also presume that the necessary ceremonies had been performed.
The factum of marriage in this case having been clearly established, the Court will presume that the necessary essential ceremonies had been performed. As already indicated above, the plaintiffs never challenged the marriage on the ground that the essential ceremonies had not been performed. The defendants therefore were not called upon to adduce categorical evidence on that aspect. In view of this legal position, and in absence of any challenge about performance of essential ceremoniesthe presumption will be that the necessary ceremonies had taken place. This point, therefore, fails.
8. Point No. 2: The plaintiffs raised a question in para 5 of the plaint that defendant-6 had sold lands in excess of her share under the impugned sale-deed (Ext. B). They had clearly set out in their plaint that the family of the plaintiffs comprised of four brothers including the three plaintiffs and their mother, plain-tiff-4. The family possessed certain ioint family lands including the suit-land. It was never their case that there were any other cosharers in respect of the ioint family lands apart from the three plaintiffs and the deceased Durga Charan. In face of these specific allegations in the plaint, the lower appellate court worked out the share of defendant-6 to be one-fifth in the ioint family property. From the constitution of the family as indicated in the plaint, the share of Durga Charan would patently be one-fifth as has been worked out by the lower appellate court. All necessary allegations for computing his share had been made in the plaint. I cannot see what difference it would have made, if a specific issue had been framed as to the share of Durga Charan. As the ascertainment of Durga Charan's share had been made on the basis of plaintiff's averments. I also fail to see how the plaintiffs have been pre-iudiced on account of non-framing of such an issue. The plaintiffs have set out in para 2 of the plaint the genealogy of the family from which the share of Durga Charan can easily be worked out. In such circumstances, the lower appellate court is justified in holding that the impugned sale-deed shall be deemed to be valid to the extent of one-fifth share of the deceased defendant-6 in lots 1, 10 and 12. For the aforesaid reasons, this point also fails.
9. In the result, there is no merit in this appeal which is accordingly dismissed; but in the circumstances of the the case, there would be no order for costs of this Court.