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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1103 OF 2004

Easwari … Appellant

:Versus:

Parvathi & Ors. …

Respondents

J U D G M E N T

Pinaki Chandra Ghose, J.

1.This appeal has been filed assailing the judgment and order

dated July 22, 2003 passed by the High Court of Judicature at

Madras in Second Appeal No.1806 of 1992. The High Court after

perusing the facts and the evidence on record by the said

judgment and order allowed the second appeal confirming the

order of the Trial Court and setting aside the order passed by the

first appellate court.

2.The brief facts of the case are as follows:

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The respondents herein (plaintiffs before the Trial Court)

filed a suit for declaration and injunction with regard to the

properties described as schedule “A” and schedule “B” properties

and the Trial Court passed the decree in favour of the plaintiffs for

both the schedule properties. Assailing the said Trial Court’s

decision the appellant herein filed an appeal before the Lower

Appellate Court. The Lower Appellate Court confirmed the “B”

schedule property in favour of the plaintiffs (respondents herein)

but reversed the decree with regard to “A” Schedule property

culminating in filing the second appeal.

3.The plaintiffs, respondents herein, filed Original Suit No. 59

of 1985 before the District Munsif Court at Polur as the legal heirs

of deceased Ponnangatti Gounder. The disputes pertained to the

properties which were held by deceased Ponnangatti Gounder

and his first wife who pre-deceased him. Ponnangatti Gounder

acquired the suit “A” schedule property through succession from

his ancestors. The suit property mentioned as schedule “B”

property was purchased by Muniammal by registered conveyance

deed dated September 14, 1970. Both were in possession and

enjoyment of Ponnangatti Gounder and Muniammal and after

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their death the plaintiffs were and are in possession of the said

properties. After the death of Muniammal, it is alleged by the first

defendant and her brother, the second defendant that the said

Ponnangatti Gounder married the first defendant as a result

whereof she made a claim over the suit property.

4.Issues were framed by the Trial Court and after assessing

the evidence, both oral and documentary, the Trial Court decreed

the suit for both “A” and “B” schedule properties in favour of the

plaintiffs. Assailing the said decree an appeal was preferred by

the present appellant before the First Appellate Court. The First

Appellate Court reversed the decree in respect of the schedule

“A” property in the suit. Assailing such judgment and decree,

second appeal was filed before the High Court by the plaintiffs.

5.So far as the dispute, as it appears, cannot be extended with

regard to schedule “B” property which belonged to Muniammal,

since it was purchased by her on September 14, 1970 through

Ex.B-6 in respect of which the decree passed by the Trial Court

was confirmed by the Lower Appellate Court, the defendant has

no claim over the same. The dispute between the parties is only

in respect of the schedule “A” property in the suit.

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Looking at the facts of the case, the primary question as it

appears to us, which has to be dealt with is whether the first

defendant, the appellant herein, is the second wife of the

deceased Ponnangatti Gounder and whether she is entitled to

have a share in the suit “A” schedule property.

6.The High Court dealt with the matter at length. It is stated by

the appellant herein before the Trial Court that Muniammal died

ten years ago i.e. in 1976. It is further stated that on December

15, 1977 Ponnangatti married to the first defendant, the appellant

herein in the Devasthanam of Sri Perianayaki Saneda Kanagagiri

Eswarar at Devikapuram. To prove the factum of marriage, she

produced a temple receipt before the High Court being Ex.B-8

which was produced from the lawful custody of the trustee of the

temple. Exs.B-9 and B-10 were also produced and said to be the

accounts for the gifts made at the time of the said marriage. The

first defendant/respondent also produced Exs.B-1 and B-2 which

are the voters list of 1978 and 1983 wherein it appears that the

first defendant was described as the wife of Mannangatti and

Ponnangatti. The pass books of the bank accounts for the year

1984 and 1985 being Exs. B-3 and B-4 and bankers’ reply were

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also produced to show that the first defendant was described as

wife of the deceased Ponnangatti Gounder. The High Court duly

assessed all documents and held that no reliance can be placed

on the Exh.B-3 to B-6 as they only represent the unilateral

description of the first defendant as wife of Ponnangatti Gounder.

Similarly, Ex.B-7 was a mortgage deed executed just prior to the

filing of the suit where also the unilateral description of the first

defendant as wife of Ponnangatti Gounder can be seen. Similarly,

Exs.B-9 and B-10 also cannot be relied upon because it is not very

difficult to prepare these documents for the said purpose. Hence

the High Court did not place reliance on such exhibits.

7.Accordingly, the High Court was left only with the

documentary evidence of Ex.B-8 on the one hand and Exs.B-1 and

B-2 on the other hand. Ex.B-8 was produced from the lawful

custody of trustee of the temple and the said trustee while

examining, deposed before the Court in his cross-examination

that he did not know about the actual marriage said to have been

conducted in the temple. In these circumstances, the probative

value of Ex.B-8, as correctly appreciated and held by the High

Court, gets diluted. Other Exhibits being Exs. B-1 and B-2 were

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also specifically dealt with by the High Court and the High Court

after assessing the document held that different descriptions of

the name of husband of the first respondent are given in the

voters list. Therefore, the High Court did not place any reliance on

the said voters list.

8.The High Court also placed reliance on Bhaurao Shankar

Lokhande & Anr. v. State of Maharashtra and Anr.

1

and found that

mere going through certain ceremonies with intention of marriage

will not make the ceremonies as prescribed by law or approved by

any established custom. The bare fact of a man and a woman

living as husband and wife does not normally give them the

status of husband and wife.

9.With regard to co-habitation also the High Court held that

there is no evidence of long co-habitation, even assuming that

Exs. B-1 and B-2 are true, they only show the cohabitation of only

one year in 1978 and another year in 1983. In these

circumstances, the High Court held that the alleged marriage

should be proved only on the basis of legal presumption of long

co-habitation which is not present in the instance case. For the

1

(AIR 1965 SC 1564)

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proof of marriage, there is no evidence except Ex.B-8 which

although was produced from lawful custody of the trustee of the

temple, but it did not mention anything about the marriage

ceremony or the conduct and solemnization of the marriage at all.

The claim of the respondent herein that Murugan and Selvi were

born to Ponnangatti but no birth certificate was produced before

the Court and in these circumstances the High Court held that the

Lower Appellate Court, without proper evidence of marriage of the

first defendant (appellant herein) with Ponnangatti, had

erroneously come to the conclusion as if the marriage had been

conducted properly. Similarly, there could be no presumption

under Section 114 of the Evidence Act because the factor of long

cohabitation has not been established. In these circumstances,

the High Court allowed the Second Appeal, set aside the decree

and judgment of the First Appellate Court and confirmed the

decree passed by the Trial Court in respect of both Schedule “A”

and Schedule “B” properties in favour of the plaintiffs.

10.The case of the appellant before us is based on two grounds;

firstly, that the High Court incorrectly allowed the Second Appeal

without formulating a substantial question of law in light of this

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Court’s decision in Veerayee Ammal vs. Seeni Ammal

2

wherein it

has been held that as per Section 100 of the Code of Civil

Procedure, 1908 (hereinafter referred to as “the Code”) the High

Court can only entertain a second appeal when there is a

substantial question of law involved; secondly, it has been

submitted by the learned counsel for the appellant that the High

Court erred in terming the marriage of the appellant and

deceased Ponnangatti Gounder as invalid inspite of this Court’s

decision in S. Nagalingam v. Sivagami

3

wherein it was held that:

“17. …..In the Hindu Marriage Act, 1955, there is a State

amendment by the State of Tamil Nadu, which has been

inserted as Section 7-A. The relevant portion thereof is as

follows:

“Section 7-A. Special provision

regarding suyamariyathai and

seerthiruththa marriages .—(1) This

section shall apply to any marriage between

any two Hindus, whether called

suyamariyathai marriage or seerthiruththa

marriage or by any other name, solemnised

in the presence of relatives, friends or other

persons—

(a) by each party to the marriage declaring in

any language understood by the parties that

2

(2002) 1 SCC 134

3

(2001) 7 SCC 487

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each takes the other to be his wife or, as the

case may be, her husband; or

(b) by each party to the marriage garlanding

the other or putting a ring upon any finger of

the other; or

(c) by the tying of the thali.

(2)(a) Notwithstanding anything contained in

Section 7, but subject to the other provisions

of this Act, all marriages to which this section

applies solemnised after the commencement

of the Hindu Marriage (Tamil Nadu

Amendment) Act, 1967, shall be good and

valid in law.

(b) Notwithstanding anything contained in

Section 7 or in any text, rule or interpretation

of Hindu law or any custom or usage as part

of that law in force immediately before the

commencement of the Hindu Marriage (Tamil

Nadu Amendment) Act, 1967, or in any other

law in force immediately before such

commencement or in any judgment, decree

or order of any court, but subject to sub-

section (3), all marriages to which this

section applies solemnised at any time

before such commencement, shall be

deemed to have been, with effect on and

from the date of the solemnization of each

such marriage, respectively, good and valid

in law.

(3)* * *

(a)* * *

(i) - (ii)* * *

(b) - (c)* * *

(4)* * *”

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18. Section 7-A applies to any marriage between two

Hindus solemnised in the presence of relatives, friends

or other persons. The main thrust of this provision is

that the presence of a priest is not necessary for the

performance of a valid marriage. Parties can enter into

a marriage in the presence of relatives or friends or

other persons and each party to the marriage should

declare in the language understood by the parties that

each takes the other to be his wife or, as the case may

be, her husband, and the marriage would be completed

by a simple ceremony requiring the parties to the

marriage to garland each other or put a ring upon any

finger of the other or tie a thali. Any of these

ceremonies, namely, garlanding each other or putting a

ring upon any finger of the other or tying a thali would

be sufficient to complete a valid marriage. Sub-section

(2)(a) of Section 7-A specifically says that

notwithstanding anything contained in Section 7, all

marriages to which this provision applies and

solemnised after the commencement of the Hindu

Marriage (Tamil Nadu Amendment) Act, 1967, shall be

good and valid in law.

11.The appellant has first challenged the correctness of the

High Court in allowing the Second Appeal under Section 100 of

the Code, which is reproduced as under:

“Section 100- Second appeal- (1) Save as otherwise

expressly provided in the body of this Code or by any

other law for the time being in force, an appeal shall lie

to the High Court from every decree passed in appeal

by any Court subordinate to the High Court, if the High

Court is satisfied that the case involves a substantial

question of law.

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(2) An appeal may lie under this section from an

appellate decree passed exparte.

(3) In an appeal under this section, the memorandum

of appeal shall precisely state the substantial question

of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial

question of law is involved in any case, it shall

formulate that question.

(5) The appeal shall be heard on the question so

formulated and the respondent shall, at the hearing of

the appeal, be allowed to argue that the case does not

involve such question :

Provided that nothing in this sub-section shall be

deemed to take away or abridge the power of the Court

to hear, for reasons to be recorded, the appeal on any

other substantial question of law, not formulated by it,

if it is satisfied that the case involves such question.”

A plain reading of the said provision conveys that a second appeal

be allowed only when there is a ‘substantial’ question of law

involved. However, it is settled law that the High Court can

interfere in second appeal when finding of the First Appellate

Court is not properly supported by evidence. In Vidhyadhar v.

Manikrao & Anr.

4

this Court held as under

“3. The findings of fact concurrently recorded by the

Trial Court as also by the Lower Appellate Court could

not have been legally upset by the High Court in a

4

(1999) 3 SCC 573

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second appeal under Section 100 CPC unless it was

shown that the findings were perverse, being based on

no evidence or that on the evidence on record, no

reasonable person could have come to that

conclusion.”

Furthermore, in Yadarao Dajiba Shrawane (dead) by LRS v.

Nanilal Harakchand Shah (Dead) & Ors.

5

this Court stated:

“31. From the discussions in the judgment it is clear

that the High Court has based its findings on the

documentary evidence placed on record and

statements made by some witnesses which can be

construed as admissions or conclusions. The position is

well settled that when the judgment of the final court of

fact is based on misinterpretation of documentary

evidence or on consideration of inadmissible evidence

or ignoring material evidence the High Court in second

appeal is entitled to interfere with the judgment. The

position is also well settled that admission of parties or

their witnesses are relevant pieces of evidence and

should be given due weightage by courts. A finding of

fact ignoring such admissions or concessions is vitiated

in law and can be interfered with by the High Court in

second appeal.”

The above view of the Court must be read in consonance with the

decision of this Court in Rattan Dev v. Pasam Devi

6

wherein it was

specifically stated that:

5

(2002) 6 SCC 404

6

(2002) 7 SCC 441

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“Non-application of mind by the appellate court to other

material, though available, and consequent failure of

the appellate court to discharge its judicial obligation,

did raise a question of law having a substantial impact

on the rights of the parties, and therefore, the second

appeal deserved to be heard on merits.”

In light of the above decisions we are of the opinion that the High

Court cannot be precluded from reversing the order and judgment

of the Lower Appellate Court if there is perversity in the decision

due to mis-appreciation of evidence. This holds good especially in

light of the principle that even when both the Trial Court and the

lower court have given concurrent findings, there is no absolute

ban on the High Court in second appeal to interfere with the facts

(See: Hafazat Hussain v. Abdul Majeed

7

)

12.Having perused the impugned judgment in the Second

Appeal and the judgment of the First Appellate Court which has

been set aside by the High Court, we are of the opinion that the

High Court correctly formulated the substantial question of law,

the same is produced as under:

7

(2001) 7 SCC 189

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“Whether the Lower Appellate Court erred in not taking

into account the law laid down in 1989 (2) L.W. 197

(DB)?”

In Mohan v. Santha Bai Ammal

8

being the case referred to in the

abovementioned question, it has been held that mere receipt of

showing payment of money without obtaining and producing the

marriage certificate or without summoning production of the

original marriage register maintained by the temple, may not be

sufficient to establish the marriage. In light of the same the High

Court while answering the substantial question, found no

substantial evidence by which factum of marriage is established.

13.After perusing the documentary evidence and other

evidence before us, we are of the opinion that the High Court was

correct in entertaining the matter in second appeal. The only

aspect which needs to be considered by us is, whether the High

Court correctly appreciated the evidence and concluded that the

First Appellate Court without proper evidence of marriage held

that the marriage took place.

8

1989 (2) L.W. 197

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14.In our opinion, the High Court correctly assessed and

appreciated the facts in the instant case and we concur with the

views expressed by the High Court. We also endorse the

reasoning given by the High Court. In our opinion, from the

evidence on record it cannot be said that the marriage between

Ponnangatti Gounder and Easwari was proved.

15.For the discussions and the reasoning given in the preceding

paragraphs, we do not find merit in the appeal and accordingly

we affirm the judgment and order passed by the High Court and

dismiss this appeal.

……………………………… ..J.

(Chandramauli Kr. Prasad)

New Delhi; ………....…………………….J.

July 10, 2014 (Pinaki Chandra Ghose)