The Supreme Court of India, in a judgment delivered on August 25, 2025, has dismissed an appeal in a property partition suit, affirming the decision of the Karnataka High Court. The bench, comprising Justice Sanjay Karol and Justice Prashant Kumar Mishra, held that a strong presumption of marriage arises from long and continuous cohabitation. The Court also drew an adverse inference against a defendant who, despite being central to the controversy, failed to testify in court.
The case, Chowdamma (D) by LR and Another v. Venkatappa (D) by LRs and Another, revolved around a dispute over ancestral property, where the plaintiffs’ claim for a share depended on proving that their mother was the first wife of the deceased patriarch.
Background of the Case
The dispute concerned the properties of the late Dasabovi @ Dasappa. The plaintiffs, Venkatappa and Siddamma, claimed to be the children of Dasabovi from his first wife, Bheemakka @ Sathyakka. The defendants were Chowdamma, who claimed to be the sole wife of Dasabovi, and her son, Balachandrappa.
According to the plaintiffs, their grandfather, Thimmabovi Vellappa, had two sons, Dasabovi and Venkatappa. After a partition, the suit properties fell to Dasabovi’s share. The plaintiffs asserted that Dasabovi first married their mother, Bheemakka, and they were born from this union. Subsequently, Dasabovi married Chowdamma (Defendant No. 1), after which Bheemakka and her children (the plaintiffs) were driven out of the matrimonial home and went to live in Bheemakka’s paternal village. Despite this, Dasabovi allegedly continued to visit them.
After Dasabovi’s death, the plaintiffs demanded their half-share in the family properties. When the defendants refused, they filed a suit for partition (O.S. No.102/2001). The Trial Court dismissed the suit, but the High Court of Karnataka, in Regular First Appeal No.935 of 2005, overturned the decision and decreed the suit in favour of the plaintiffs. The defendants then appealed to the Supreme Court.
Arguments of the Parties
The appellants (defendants) argued that the High Court had erred in setting aside the Trial Court’s well-reasoned judgment. They contended that the plaintiffs had failed to provide cogent evidence of the marriage between their mother and Dasabovi. They also claimed the plaintiffs were not in joint possession of the properties and that the revenue records were in the defendants’ names. They further submitted that drawing an adverse inference against Defendant No. 1 for not deposing was unjustified, as she was medically unfit due to arthritis.
The respondents (plaintiffs) countered that the Trial Court’s finding was perverse and the High Court had rightly relied on the evidence on record, particularly the testimony of witness P.W.2 (Hanumanthappa), to establish the marriage. They argued that once they had discharged their initial burden of proof, the onus shifted to the defendants, which they failed to discharge. They maintained that revenue records do not confer title.
The Court’s Analysis
The Supreme Court identified the principal issue as whether the plaintiffs had successfully established a valid marital relationship between their mother and the deceased Dasabovi.
Proof of Relationship and Section 50 of the Evidence Act
The Court noted that in the absence of conclusive documentary evidence, the testimony of P.W.2 (Hanumanthappa), an independent witness, assumed “crucial significance.” P.W.2, a 75-year-old resident of the plaintiffs’ mother’s village, testified that he knew both families and that Dasabovi had married Bheemakka in accordance with community customs. He also stated that Dasabovi would regularly visit Bheemakka and the plaintiffs after they were ousted from the family home.
The bench found that this testimony fell within the ambit of Section 50 of the Indian Evidence Act, 1872, which makes relevant the opinion of a person with “special means of knowledge” on a matter of relationship. The Court observed, “The testimony of P.W.2 (Hanumanthappa), being that of a person residing in the same village and having a long-standing familiarity with both the plaintiffs and the defendants… cannot be dismissed as mere hearsay. On the contrary, it reflects a narration of events personally witnessed or known to him directly.”
Presumption of Marriage from Cohabitation
The Court invoked the established legal principle that prolonged cohabitation between a man and a woman gives rise to a strong presumption of a valid marriage. It cited its own precedent in Badri Prasad v. Dy. Director of Consolidation, which 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.”
The Court found that Dasabovi’s regular visits to the plaintiffs and their mother gave rise to a presumption that they lived as husband and wife. The judgment stated, “Such prolonged cohabitation, coupled with the testimony of P.W.2 (Hanumanthappa), attracts a strong presumption in favour of a valid wedlock.” The bench concluded that the defendants had failed to produce any material evidence to rebut this presumption.
Adverse Inference for Failure to Testify
A significant part of the Court’s reasoning was dedicated to the failure of Defendant No. 1, Chowdamma, to enter the witness box. The Court dismissed the justification of her being an octogenarian suffering from arthritis as “conclusively dismantled by the record itself,” which showed she was physically present in court during the examination of several other witnesses.
The Court held that her refusal to testify was a “calculated withdrawal from scrutiny.” Citing its decision in Vidhyadhar v. Manikrao and Anr., the bench reiterated the principle:
“Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.”
The Court further noted that the defendant had not availed the remedy under Order XXVI, Rule 1 of the Code of Civil Procedure, 1908, to have her evidence recorded through a commission, which it termed a “conscious evasion from the evidentiary process.” The judgment concluded that an “adverse presumption under Section 114(g) of the Evidence Act is inevitable.”
Regarding the defendants’ reliance on revenue records, the Court reiterated the settled law from Suraj Bhan and Ors. v. Financial Commissioner and Ors. that “an entry in revenue records does not confer title on a person.”
The Decision
Finding that the plaintiffs had successfully discharged their evidentiary burden and the defendants had failed to rebut it, the Supreme Court concluded that the High Court’s judgment did not suffer from any infirmity.
“When measured against the touchstone of preponderance of probabilities, the scales unambiguously tilt in favour of the plaintiffs,” the Court observed.
The appeal was consequently dismissed, and the High Court’s decree granting the plaintiffs a share in the properties was upheld.
