Suit for Declaration of title and injunction -Status of Wife - with out production of marriage register of temple in which the marriage was taken place - producing other records does not confirm the status of wife - Legal heirs of deceased filed the suit against alleged second wife of deceased in respect of A-schedule ancestral properties of deceased and B - schedule properties of deceased first wife - Trail court decreed the suit - first appellant court decreed the suit against B schedule only and dismissed the suit against A schedule - in second appeal - High court reversed the first appellant court order and confirmed the order of trial court - holding that first defendant is not the wife of deceased Gounder - Apex court held that when there is perverse in the judgment of first appellant court - High court in second appeal interfere the same and further held that Highcourt rightly uphled that first defendant is not the wife of Gounder - except producing receipts from temple showing payment of marriage tax with out placing the marriage register before the court and mere producing other documents like voter list, bank books, mortgage deed etc., in which she was depicted as wife of Gounder not amounts to prove of marriage - non-producing birth certificates is also fatal to show that she was the wife and also her long co-habitation does not cloth her with the status of wife to claim property and as such dismissed the appeal and confirmed the judgement of high court =
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 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.
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.
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.
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.
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
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.
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.
Apex court held that
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.
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.
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:
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 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.
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
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 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 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 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 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) * * *”
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.
(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 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:
“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:
“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.
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)
-----------------------
[1] (AIR 1965 SC 1564)
[2] (2002) 1 SCC 134
[3] (2001) 7 SCC 487
[4] (1999) 3 SCC 573
[5] (2002) 6 SCC 404
[6] (2002) 7 SCC 441
[7] (2001) 7 SCC 189
[8] 1989 (2) L.W. 197
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 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.
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.
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.
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.
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
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.
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.
Apex court held that
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.
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.
2014 – July. Part – http://judis.nic.in/supremecourt/filename=41758
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:
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 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.
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
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 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 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 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 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) * * *”
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.
(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 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:
“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:
“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.
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)
-----------------------
[1] (AIR 1965 SC 1564)
[2] (2002) 1 SCC 134
[3] (2001) 7 SCC 487
[4] (1999) 3 SCC 573
[5] (2002) 6 SCC 404
[6] (2002) 7 SCC 441
[7] (2001) 7 SCC 189
[8] 1989 (2) L.W. 197
