The son born to a couple who lived together for a number of years has the share in ancestral property, ruled the Supreme Court of India while setting aside a verdict of the Kerala High Court on Monday.

A bench of justices S Abdul Nazeer and Vikram Nath observed that the law presumes in favour of marriage and against concubinage when a man and woman cohabited for a long period. Therefore, their son cannot be denied the shares in the ancestral properties.

As per the petition, the first plaintiff in the case had claimed half share in his ancestral property. However, his cousin (first defendant) and his children had contended that he is an illegitimate child and cannot claim the right over the coparcenary property.

Hearing the case, a Trial Court had held that the parents of the first plaintiff had cohabitated with each other for years and due to such co­habitation, it could be concluded that they were married and the first plaintiff was the son born in the said wedlock.

The Trial Court accordingly passed a preliminary decree for partition of the property into two shares and one such share was allotted to the plaintiffs.

Aggrieved by the said judgment and decree, the defendants approached the High Court stating the first plaintiff is an illegitimate child and the plaintiffs cannot claim the right over the coparcenary property as long as the marriage between his parents is proved.

The Kerala High Court opined that the position of the first plaintiff to be an illegitimate child. That being so, the plaintiffs would not be entitled to a share in the coparcenary property since the marriage was not a valid one. On the basis of this conclusion, the High Court remitted the matter back to the Trial Court for fresh consideration.

After the matter reached the Supreme Court, the bench examined all evidence and witnesses and opined,

“It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin to prove that no marriage took place.”

“Resultantly, the appeals succeed and are accordingly allowed. The judgment of the High Court impugned herein is set aside and the judgment and decree passed by the Trial Court is restored.”