1. The decree passed in favour of the plaintiffs of declaration and of permanent injunction passed by the trial Court in relation to the suit land situated at Survey No. 531 in village Babrod, Tahsil Mungaoli of Guna District, area 1 Bigha 13 Biswa, was reversed by the First Appellate Court. Aggrieved of this dismissal of the suit, the plaintiffs have preferred this second appeal.

2. Brief facts leading to this appeal are these: One Fodal Singh and Murli Singh, who were real brothers partitioned their properties and agricultural lands; land bearing Survey Nos. 220, 224, 243, 510 and 531, situated in village Babrod came in the share of Fodal Singh and the rest of the lands went to Murli Singh. Mathurobai, plaintiff No. 1, was married to one Takhat Singh, but without seeking any decree of divorce, she, according to the custom prevailing in the caste, married Fodal Singh and started living with him as his wife. Mathurobai gave birth to one daughter and two sons. It is not disputed that appellants Nos. 2, 3 and 4 are the children of Fodal Singh and Mathurobai. Fodal Singh died after about 15 years. After the death of Fodal Singh the names of the appellants/plaintiffs were mutated as Bhumiswamis in the revenue records as heirs of Fodal Singh. Murli Singh, after the death of Fodal Singh, transferred by way of sale, the suit-land, i.e, 1 Bigha 13 Biswa, situated at Survey No. 531 along with some other lands to Gorelal and Phool Singh, the defendants Nos. 2 and 3. After sale, the defendants tried to dispossess the plaintiffs forcibly, hence, the plaintiffs instituted a suit for declaration of their title and for permanent injunction, seeking the relief that the sale deed executed by Murli Singh in favour of the defendants is ineffective against the title and rights of the plaintiffs. During trial, Phool Singh compromised the suit with the plaintiffs and admitted their claim. The other defendants contested the suit on the ground that as plaintiff No. 1 Mathurobai is not the legally wedded wife, she and her children are not the legal heirs of deceased Fodal Singh; the plaintiffs have no right in the property left by deceased Fodal Singh. The trial Court raised a presumption of marriage, because of the long cohabitation between Fodal Singh and Mathurobai as husband and wife, decreed the suit of the plaintiffs. The lower appellate Court, in appeal preferred by the defendants, reversed the decree holding that Mathurobai was not the legally wedded wife, though, as wife, she remained in long cohabitation with Fodal Singh for a period of 15 years and gave birth to a daughter and two sons; as Mathurobai is not the legally married wife; the children are illegitimate, hence, the plaintiffs do not acquire any right in the properties left by deceased Fodal Singh, the order of mutation, as Bhumiswami, of the plaintiffs has no effect.

3. Shri K.B Chaturvedi, learned counsel for the appellants, contended that Takhat Singh, former husband of Mathurobai, never objected to her long cohabitation with Fodal Singh; there is a custom of such marriage in the caste, therefore, long cohabitation between a man and a woman raises a clear presumption of marriage, particularly where they lived as husband and wife and children born out of such marriage were treated as the children of Fodal Singh by the community. It was also contended that a third person has no right to challenge that the marriage was void in any suit or proceeding; if a marriage is solemnised in contravention of any of the provisions of the Hindu Marriage Act, 1955 (for short, the ‘Act’), it remains only a punishable offence, it does not affect the right of succession. Lastly, it was submitted that, in any case, section 16 of the Act safeguards the interest of the off springs of void or voidable marriage and it upholds the legitimacy of paternity of a child born out of such marriage, the section removes the disability of illegitimacy and confers status with interest in the property. Learned counsel in support of his contentions placed reliance on the decisions in Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258 : AIR 1978 SC 1351; Badri Prasad v. Dy. Director, Consolidation, (1978) 3 SCC 527 : AIR 1978 SC 1557; Rewa Ram v. Ram Raton, 1961 JLJ 1126; Ramkali v. Nathoo Singh, 1983 MPWN 262; Gindan v. Barelal, 1976 MPLJ 102 : AIR 1976 MP 83 (D.B); Laxmibai Nagappa v. Limbabai Nagappa, AIR 1983 Bom. 222 and Smt. Sheel Wati v. Smt. Ram Nandani, AIR 1981 All. 42.

4. Shri K.N Gupta, learned counsel for the respondents/defendants, contended that Fodal Singh died in the year 1962; during the cohabitation between him and Mathurobai the provisions of the Act were applicable; as no decree for divorce was obtained by plaintiff No. 1 Mathurobai from her former husband, the previous marriage cannot be said to be dissolved; therefore, even if the plaintiff Mathurobai remained in long cohabitation with Fodal Singh, no presumption because of long cohabitation or association will arise in favour of marriage. It was also submitted by Shri Gupta that the ancient custom prevailing in the caste to which Fodal Singh and Mathurobai belonged, has not been established in the case; therefore, learned counsel submitted, the lower appellate Court rightly held that neither the plaintiff No. 1 nor the other plaintiffs get any right in the property left by deceased Fodal Singh, after whose death, the property left by Fodal Singh, automatically devolved on Murlisingh, as he is the only surviving legal heir. Shri Gupta placed reliance on the decisions in Lalesarbai v. Jugribai, 1978 (II) WN 277; Krishna Sahu (Miss) v. State of M.P, 1989 JLJ 110 and Lata Kamat v. Vilas ., 1989 MPLJ 372 : (1989) 2 SCC 613 : AIR 1989 SC 1477.

5. In this case the facts as stated above are not disputed; therefore, on the proved facts a continuous long cohabitation of Fodal Singh with Mathurobai as husband and wife and their treatment as such for a number of years necessarily raise a presumption of lawful marriage. See Gokul Chand v. Parvin Kumari, AIR 1952 SC 231 and Ramkali v. Nathoo Singh (supra). It is not only long cohabitation, but the children born from such long cohabitation were treated as the children of Fodal Singh and Mathurobai in the community. It is true that Takhat Singh, former husband of Mathurobai, is alive, but he did not move a little finger of getting Mathurobai restored to him either by an action for restitution of conjugal rights or in a criminal proceeding for adultery; this conduct of Takhat Singh indicated that he had repudiated the marriage between him and Mathurobai and, in such circumstances, a divorce between Mathurobai and Takhat Singh can easily be presumed. (See Rewa Ram v. Ram Raton) (supra). On proved and admitted facts, the principle that law leans in favour of legitimacy and frowns upon bastardity also helps the plaintiffs' case. (See Lila Gupta v. Laxmi Narain) (supra).

6. The contention of Shri Gupta that as the provisions of the Act came into force and after the enforcement of the Act, the marriage of Mathurobai with Takhat Singh ought to have been dissolved, which having not been done in the present case, the second marriage, even if sanctioned by custom, is void from its inception under section 11 of the Act, as it contravenes section 5(i) of the Act and such marriage is to be ignored as not existing in law at all, cannot be accepted. Even for argument's sake it is considered that the marriage was not legal and void the right of the children to the property left by Fodal Singh is not destroyed in view of the provisions of section 16 of the Act. The provision of section 16 is for the benefit of such children and has to be applied in full, so as to confer status with interest in property. A bare reading of section 16 clearly shows that it removes the disability of rights of such children so far as the property of their parents is concerned. Shri Gupta could not point out that any of the provisions of the Hindu Succession Act disqualifies such an offspring or children born out of such void marriages to inherit the property of their parents. Recently, the Apex Court in case of Yamunabai v. Anantrao, (1988) 1 SCC 530 : AIR 1988 SC 644, while considering the case of a marriage in violation of clause (i) of section 5 of the Act, held that such marriage covered by section 11 is void ipso jure, that is, void from the very inception and has to be ignored as not to be existing in law at all, if aggrieved party exercises its right to get such a declaration. The Apex Court further observed in relation to the children born out of such marriage that while enacting the provisions of section 16, the Legislature has considered it advisable to uphold the legitimacy of paternity of a child born out of void marriage, but this legitimacy was not extended a similar protection in respect of the mother of the child.

7. In fact, the dispute in the present case has not been raised by the aggrieved party to the marriage, but a third person has come to challenge the validity and legality of the marriage and also legitimacy of the children. In my opinion, the third person cannot raise such a dispute nor it could have been agitated in the present suit. In any case, on the facts as found proved and as the law leans in favour of legitimacy and frowns upon bastardity, the right of inheritance of the children to the property of their parents cannot be taken away or challenged because of the provisions of section 16 of the Act.

8. In the result, the appeal succeeds and is allowed; the judgment and decree passed by the lower appellate Court dismissing the suit of the plaintiffs is set aside and that of the trial Court is restored. In the circumstances of the case, parties to bear their own costs. A decree be drawn up accordingly.

Appeal allowed.