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The plaintiff will not be entitled to succeed only on the basis of alleged registration of an agreem


On 15th November 19, 2019 Justice. L. Nageswara Rao and justice Hemant Gupta delivered the judgment stating that on failure to prove the solemnization of marriage according to section 7of the Hindu Marriage Act 1955 and 5, 24 of the Special Marriage Act, 1954 the plaintiff is not entitled for partition of ancestral property of Hindu Undivided Family.

The honorable Supreme Court looked into the issue, whether there was a valid married between the plaintiff and the deceased? Under such valid marriage only a widow of Hindu Undivided Family will get the partition on ancestral property.

The leading contention made by the appellant is that at the time of marriage the plaintiff and deceased was 15 years and 19 years old respectively. Therefore the court held that;

The plaintiff and the deceased have not attainted the qualifying age to register the marriage in sub- registrar office and thus marriage was void ab initio. It is also held that there is no evidence  of performance of necessary marriage ceremonies in terms of section 7 of the Hindu Marriage Act, 1955; therefore mere registration of an agreement of marriage is not sufficient to prove marriage.

The plaintiff deposed that she belongs to Vokkaliga community and marriages were performed in house and no marriage in the family was performed in the sub- registrar office. The learned trial court held that the marriage of the plaintiff with the deceased is said to be proved but marriage is void ab initio under section 24 of the Special marriage Act, 1954 as both have not attained the qualifying age for marriage and held that the defendants are entitled to 1/3rd of the total scheduled property.

On appeal to the First Appellate Court, the learned Court held that in the absence of proof of date of birth the trial court committed an error in coming to the conclusion that the plaintiff has not attainted the age of marriage.

The burden to prove the marriage was on the plaintiff.  The plaintiff has failed to prove the marriage.  The entire case is based upon an agreement of marriage in which there is no assertion regarding solemnization of the customary ceremonies or the rites or that the parties had performed saptpadi in the manner contemplated under Section 7 of the Act, therefore, the plaintiff cannot succeed the estate of Hanumanthappa on the basis of a marriage which she has failed to prove.

The honorable Supreme Court stated that since the entire claim is on the validity of marriage of plaintiff with the deceased, the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence is the established principle of law. The court in Varada Bhavanarayana Rao vs. State of A.P AIR 1963 SC 1715 held that under section 102 of the Evidence Act, 1872, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Thus, the Honorable Supreme Court find that the High Court has committed illegality that on failure of producing any evidence to prove the marriage the learned High Court should have not passed the decree for partition to the plaintiff. Therefore, the SC allowed the present appeal in the instant case while restoring the judgment and decree of the learned Trial court.

View/Download Judgment: Rathnamma v. Sujathamma

Srutha R Elayidom



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