Presumption of marriage and legitimacy supported succession, but a bank deposit already adjusted could not be partitioned.

Long cohabitation, family treatment, documentary records and witness evidence supported a presumption that Durairaj and Kamalambal lived as husband and wife, and that the plaintiffs were their children. Although a second marriage during the subsistence of an earlier marriage would be void, the children from that union were not denied legitimacy for claiming their father's property, so succession was upheld. By contrast, the bank deposit could not be brought into partition because the record showed it had already been adjusted towards a loan and paid out, leaving nothing with the bank on the suit date; the decree on that item was therefore set aside.

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Issues: (i) Whether the alleged marriage between Kamalambal and Durairaj on 05.06.1960 was true and valid, and whether the plaintiffs were entitled to succeed to Durairaj's properties as his children; (ii) Whether the deposit standing in the bank was available for partition and could be included in the preliminary decree.

Issue (i): Whether the alleged marriage between Kamalambal and Durairaj on 05.06.1960 was true and valid, and whether the plaintiffs were entitled to succeed to Durairaj's properties as his children.

Analysis: The oral evidence of close relatives and witnesses, coupled with documentary materials such as birth records, school records, voter lists, ration card entries, letters written by Durairaj, and the conduct of the first defendant, established that Durairaj and Kamalambal lived together as husband and wife and that the children were treated as their offspring. The Court found that the evidence of solemnisation, the surrounding family circumstances, and the absence of effective denial in cross-examination supported the existence of a second marriage. Though a second marriage during the subsistence of the first marriage would be void under the Hindu Marriage Act, the Court held that the children born from such a union could not be denied legitimacy for the purpose of claiming their father's property. The Court also drew the presumption under the Evidence Act on the basis of the proved relationship and long cohabitation.

Conclusion: The marriage and status of the plaintiffs were proved, and the plaintiffs were held entitled to share in Durairaj's properties. This issue was answered against the appellants in the matrimonial and succession dispute.

Issue (ii): Whether the deposit in the bank was available for partition and could be included in the preliminary decree.

Analysis: The record showed that the deposit had already been adjusted towards the loan and the balance amount had been paid to the first defendant much earlier, and that no amount remained with the bank on the date of suit. Since the subject matter itself was no longer in existence with the bank, a preliminary decree could not validly be passed in respect of that item.

Conclusion: The preliminary decree in respect of the bank deposit was set aside, and the bank's appeal succeeded on this limited issue.

Final Conclusion: The decree for partition was sustained in respect of the properties found to belong to Durairaj, but the decree relating to the bank deposit was annulled because the deposit was not available for partition.

Ratio Decidendi: Where evidence of living together, family treatment, admissions, and surrounding circumstances establishes a marital relationship, the Court may presume marriage and legitimacy, and a child from a void second marriage cannot be denied succession in the father's property; but no decree can be made in respect of a bank deposit that no longer exists with the bank.

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