When the defendant filed appeal under Section 96(2) CPC against an ex-parte decree and if the said appeal has been dismissed, thereafter, the defendant cannot file an application under Order IX Rule 13 CPC. This is because after the appeal filed under Section 96(2) of the Code has been dismissed, the original decree passed in the suit merges with the decree of the appellate court. Hence, after dismissal of the appeal filed under Section 96(2) CPC, the appellant cannot fall back upon the remedy under Order IX Rule 13 CPC.

 When the defendant filed appeal under Section 96(2) CPC against an ex-parte decree and if the said appeal has been dismissed, thereafter, the defendant cannot file an application under Order IX Rule 13 CPC. 
This is because after the appeal filed under Section 96(2) of the Code has been dismissed, the original decree  passed in the suit merges with the decree of the appellate court.
Hence, after dismissal of the appeal filed under Section 96(2) CPC, the appellant cannot fall back upon the remedy under Order IX Rule 13 CPC.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8898 OF 2019
[Arising out of SLP(C) No.20686 of 2018]
N. MOHAN ...Appellant
VERSUS
R. MADHU …Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the impugned order dated
24.04.2018 passed by the High Court of Madras at Madurai Bench
in CMP(MD) No.6566 of 2017 in AS(MD) SR No. 27805 of 2017 in
and by which the High Court has refused to condone the delay of
546 days in filing the first appeal against the judgment and decree
passed in OS No.76 of 2015 dated 09.10.2015.
3. Brief facts which led to filing of this appeal are as follows:-
The appellant-defendant is a businessman doing business of
tea and real estate. Case of the respondent-plaintiff is that on
10.01.2015, the appellant approached the respondent-plaintiff for
financial assistance for a sum of Rs.45,00,000/- for the purpose of
1
his business needs. The respondent lent him the sum of
Rs.45,00,000/- and there was no documentation for the same.
According to the respondent, it was agreed that the said amount will
be returned to the respondent with an interest of 18% per annum.
The appellant agreed to return the said amount within two months;
but the appellant has not paid the amount. On the other hand, the
appellant is said to have issued two post-dated cheques to the
respondent, one for an amount of Rs.25,00,000/- and another for an
amount of Rs.20,00,000/-. When the said cheques were presented
for collection on 10.03.2015, the same were returned with the
endorsement that “payments stopped by the drawer”. The
respondent-plaintiff filed a civil suit being OS No.76 of 2015 before
the Additional District Judge, Tiruchirappalli. The said suit was
decreed ex-parte on 09.10.2015.
4. Order IX Rule 13 CPC Proceedings:- The appellantdefendant filed IA No.327 of 2016 in OS No.76 of 2015 under
Section 5 of the Limitation Act to condone the delay of 276 days in
filing the petition under Order IX Rule 13 CPC to set aside the exparte decree. In the said application, the appellant has stated that
summons was sent to the appellant’s old address at Trichy and the
same was returned unserved and the ex-parte decree was passed
2
on 09.10.2015. It was averred in the said application that the
appellant is residing in Chennai since January, 2014. The appellant
has alleged that when he went to attend a case in CC No.240/2016
at Karur Court on 29.07.2016, he came to know about the passing
of the ex-parte decree in OS No.76 of 2015. Thereafter, the
appellant has taken steps to set aside the ex-parte decree and filed
application under Section 5 of the Limitation Act - IA No.327 of 2016
to condone the delay of 276 days in filing the petition under Order
IX Rule 13 CPC to set aside the ex-parte decree. The said petition
was dismissed by the Additional District Judge by order dated
04.01.2017. The appellant has challenged the said order by filing
revision being CRP (MD) No.257 of 2017 (NPD) before the High
Court. Rejecting the contention of the appellant that he has been
residing in Chennai, the learned Single Judge dismissed the said
revision being CRP (MD) No.257 of 2017 (NPD) by order dated
08.02.2017. The SLP(C) No.9829 of 2017 preferred against the
said order also came to be dismissed by the Supreme Court by
order dated 07.04.2017.
5. First appeal filed by the appellant in AS(MD) SR No. 27805
of 2017:- After the dismissal of the SLP by the Supreme Court, the
appellant-defendant has filed the first appeal being AS(MD) SR No.
3
27805 of 2017 challenging the decree passed in OS No.76 of 2015
dated 09.10.2015 along with application being CMP(MD) No.6566
of 2017 praying to condone the delay of 546 days in filing the
appeal. In the said application, the appellant raised the very same
grounds that he is having residence at Chennai and that the
summons was not served on him and that summons was taken to
Trichy’s address and thereafter, ex-parte decree was passed
against him on 09.10.2015 and hence, prayed for condonation of
delay. The High Court dismissed the application for condonation of
delay on the ground that in the earlier proceedings under Order IX
Rule 13 CPC, the appellant has stated the same reasons to set
aside the ex-parte decree and that the reasons so stated by the
appellant was not accepted by the trial court, High Court and the
Supreme Court. Pointing out that the appellant has chosen
belatedly to file the first appeal in time, the High Court has
dismissed the application for condonation of delay of 546 days in
filing the first appeal. Being aggrieved, the appellant has filed this
appeal.
6. Mr. V. Singan along with Mr. S. Mahendran, learned counsel
appearing for the appellant has submitted that the appellant has
shown sufficient cause for the delay in filing the first appeal and that
4
the appellant has to be given an opportunity to contest the decree
on merits. It was submitted that the appellant has adduced
documentary evidence to show that he was not residing at the
Trichy address where the substituted service was affected and while
so, the High Court erred in dismissing the application for
condonation of delay filed along with the first appeal. Contending
that despite the fact that an application under Order IX Rule 13 CPC
was dismissed, the first appeal under Section 96(2) CPC being a
statutory right is still available, the learned counsel for the appellant
placed reliance upon Bhivchandra Shankar More v. Balu Gangaram
More and others (2019) 6 SCC 387.
7. Per contra, Mr. Jayanth Muthraj, learned Senior counsel for
the respondent submitted that the appeal filed by the appellant was
beyond the period of limitation and the delay was not satisfactorily
explained. It was submitted that the earlier application for
condonation of delay in filing the application for setting aside the exparte decree under Order IX Rule 13 CPC was not accepted by the
trial court, High Court and the Supreme Court and the same has
attained finality. It was submitted that the appellant cannot reagitate
the very same question which has attained finality in the earlier
proceedings.
5
8. We have carefully considered the submissions and perused
the impugned judgment and materials on record. The following
points arise for consideration in this appeal:-
(i) After dismissal of the application filed under Order IX
Rule 13 CPC for condonation of delay in filing the
appeal, whether the appeal filed under Section 96(2)
CPC against the ex-parte decree dated 09.10.2015 is
maintainable?
(ii) Whether the time spent in the proceedings to set aside
the ex-parte decree be taken as “sufficient cause” within
the meaning of Section 5 of the Limitation Act, 1908 so
as to condone the delay in preferring the first appeal?
9. When an ex-parte decree is passed, the defendant has two
remedies – (a) Either to file an application under Order IX Rule 13
CPC to set aside the ex-parte decree by satisfying the court that the
summons was not served or if served, the defendant was prevented
by “sufficient cause” from appearing in the court when the suit was
called for hearing; (b) to file a regular appeal from the original
decree to the first appellate court in terms of Section 96(2) CPC and
challenge the ex-parte decree on merits.
10. Right to file an appeal under Section 96(2) CPC is a statutory
remedy. The right to appeal is not a mere matter of procedure; but
is a substantive right. Right to appeal under Section 96(2) CPC
6
challenging the original decree passed ex-parte, being a statutory
right, the defendant cannot be deprived of the statutory right merely
on the ground that the application filed under Order IX Rule 13 CPC
was earlier dismissed.
11. In Bhanu Kumar Jain v. Archana Kumar and another (2005) 1
SCC 787, the Supreme Court considered the question whether the
first appeal filed under Section 96(2) of the Code was maintainable
despite the fact that an application under Order IX Rule 13 CPC
was dismissed. Observing that the right to appeal is a statutory
right and that the litigant cannot be deprived of such a right, the
Supreme Court held as under:-
“36. … A right to question the correctness of the decree in a first appeal
is a statutory right. Such a right shall not be curtailed nor shall any
embargo be fixed thereupon unless the statute expressly or by
necessary implication says so. (See Deepal Girishbhai Soni v. United
India Insurance Co. Ltd. (2004) 5 SCC 385 and Chandravathi P.K. v.
C.K. Saji (2004) 3 SCC 734.)
…….
38. The dichotomy, in our opinion, can be resolved by holding that
whereas the defendant would not be permitted to raise a contention as
regards the correctness or otherwise of the order posting the suit for ex
parte hearing by the trial court and/or existence of a sufficient case for
non-appearance of the defendant before it, it would be open to him to
argue in the first appeal filed by him under Section 96(2) of the Code on
the merits of the suit so as to enable him to contend that the materials
brought on record by the plaintiffs were not sufficient for passing a
decree in his favour or the suit was otherwise not maintainable. Lack of
7
jurisdiction of the court can also be a possible plea in such an appeal.
We, however, agree with Mr Chaudhari that the “Explanation” appended
to Order 9 Rule 13 of the Code shall receive a strict construction as was
held by this Court in Rani Choudhury (1982) 2 SCC 596, P. Kiran Kumar
(2002) 5 SCC 161 and Shyam Sundar Sarma v. Pannalal Jaiswal (2005)
1 SCC 436.”
12. After referring to Bhanu Kumar Jain and other judgments and
observing that the defendant can take recourse to both proceedings
– Order IX Rule 13 CPC as well as the appeal under Section 96(2)
CPC, in Neerja Realtors (P) Ltd. v. Janglu (Dead) Through Legal
Representative (2018) 2 SCC 649, the Supreme Court held as
under:-
“17. A defendant against whom an ex parte decree is passed has two
options: the first is to file an appeal. The second is to file an application
under Order 9 Rule 13. The defendant can take recourse to both the
proceedings simultaneously. The right of appeal is not taken away by
filing an application under Order 9 Rule 13. But if the appeal is dismissed
as a result of which the ex parte decree merges with the order of the
appellate court, a petition under Order 9 Rule 13 would not be
maintainable. When an application under Order 9 Rule 13 is dismissed,
the remedy of the defendant is under Order 43 Rule 1. However, once
such an appeal is dismissed, the same contention cannot be raised in a
first appeal under Section 96. The three-Judge Bench decision in Bhanu
Kumar Jain (2005) 1 SCC 787 has been followed by another Bench of
three Judges in Rabindra Singh v. Financial Commr., Cooperation (2008)
7 SCC 663, and by a two-Judge Bench in Mahesh Yadav v. Rajeshwar
Singh (2009) 2 SCC 205. ……..” [Underlining added]
8
13. Considering the scope of Order IX Rule 13 CPC and the
statutory right to appeal under Section 96(2) CPC, after referring to
Bhanu Kumar Jain, in Bhivchandra Shankar More, this Court held
as under:-
“11. It is to be pointed out that the scope of Order 9 Rule 13 CPC and
Section 96(2) CPC are entirely different. In an application filed under
Order 9 Rule 13 CPC, the Court has to see whether the summons were
duly served or not or whether the defendant was prevented by any
“sufficient cause” from appearing when the suit was called for hearing. If
the Court is satisfied that the defendant was not duly served or that he
was prevented for “sufficient cause”, the court may set aside the ex parte
decree and restore the suit to its original position. In terms of Section
96(2) CPC, the appeal lies from an original decree passed ex parte. In
the regular appeal filed under Section 96(2) CPC, the appellate court
has wide jurisdiction to go into the merits of the decree. The scope of
enquiry under two provisions is entirely different. Merely because the
defendant pursued the remedy under Order 9 Rule 13 CPC, it does not
prohibit the defendant from filing the appeal if his application under
Order 9 Rule 13 CPC is dismissed.”
12. The right of appeal under Section 96(2) CPC is a statutory right and
the defendant cannot be deprived of the statutory right of appeal merely
on the ground that the application filed by him under Order IX Rule 13
CPC has been dismissed. In Bhanu Kumar Jain v. Archana Kumar and
Another (2005) 1 SCC 787, the Supreme Court considered the question
whether the first appeal was maintainable despite the fact that an
application under Order IX Rule 13 CPC was filed and dismissed.
Observing that the right of appeal is a statutory right and that the litigant
cannot be deprived of such right, in paras (36) and (38), it was held as
under:-
36. … A right to question the correctness of the decree in a first
appeal is a statutory right. Such a right shall not be curtailed nor
9
shall any embargo be fixed thereupon unless the statute
expressly or by necessary implication says so. (See Deepal
Girishbhai Soni v. United India Insurance Co. Ltd. (2004) 5 SCC
385 and Chandravathi P.K. v. C.K. Saji (2004) 3 SCC 734.)
…………..”
14. The defendant against whom an ex-parte decree is passed,
has two options. First option is to file an application under Order IX
Rule 13 CPC and second option is to file an appeal under Section
96(2) CPC. The question to be considered is whether the two
options are to be exercised simultaneously or can also be exercised
consecutively. An unscrupulous litigant may, of course, firstly file an
application under Order IX Rule 13 CPC and carry the matter up to
the highest forum; thereafter may opt to file appeal under Section
96(2) CPC challenging the ex-parte decree. In that event,
considerable time would be lost for the plaintiff. The question falling
for consideration is that whether the remedies provided as
simultaneous can be converted into consecutive remedies.
15. An appeal under Section 96(2) CPC is a statutory right, the
defendant cannot be deprived of the statutory right merely on the
ground that earlier, the application filed under Order IX Rule 13 CPC
was dismissed. Whether the defendant has adopted dilatory tactics
or where there is a lack of bona fide in pursuing the remedy of
appeal under Section 96(2) of the Code, has to be considered
10
depending upon the facts and circumstances of each case. In case
the court is satisfied that the defendant has adopted dilatory tactics
or where there is lack of bona fide, the court may decline to
condone the delay in filing the first appeal under Section 96(2) CPC.
But where the defendant has been pursuing the remedy bona fide
under Order IX Rule 13 CPC, if the court refuses to condone the
delay in the time spent in pursuing the remedy under Order IX Rule
13 CPC, the defendant would be deprived of the statutory right of
appeal. Whether the defendant has adopted dilatory tactics or
where there is lack of bona fide in pursuing the remedy of appeal
under Section 96(2) of the code after the dismissal of the application
under Order IX Rule 13 CPC, is a question of fact and the same has
to be considered depending upon the facts and circumstances of
each case.
16. When the defendant filed appeal under Section 96(2) CPC
against an ex-parte decree and if the said appeal has been
dismissed, thereafter, the defendant cannot file an application under
Order IX Rule 13 CPC. This is because after the appeal filed under
Section 96(2) of the Code has been dismissed, the original decree
passed in the suit merges with the decree of the appellate court.
Hence, after dismissal of the appeal filed under Section 96(2) CPC,
11
the appellant cannot fall back upon the remedy under Order IX Rule
13 CPC.
17. In the present case, the respondent has filed the Money Suit
being OS No.76 of 2015 for recovery of Rs.46,98,500/- together
with interest and the said suit was decreed ex-parte on 09.10.2015.
Execution petition being EP No.95 of 2016 was also filed for
execution of the decree. As pointed out earlier, the appellant has
filed application being IA No.327 of 2016 to condone the delay of
276 days in filing the application to set aside the ex-parte decree. In
the said application, the appellant has stated that he has been
residing at Chennai; whereas the notice was served at Trichy and
therefore, he did not have knowledge about the filing of the said suit
in OS No.76 of 2015 before the ADJ Court at Tiruchirappalli and the
ex-parte decree was passed on 09.10.2015. The appellant has
further averred that he came to know about the ex-parte decree and
the execution petition only at the time when he appeared in CC
No.240 of 2016 at Karur on 29.07.2016. As discussed earlier, the
said application filed by the appellant seeking condonation of delay
of 276 days in filing the application to set aside the ex-parte decree
was dismissed by the order dated 04.01.2017. The revision and the
SLP preferred by the appellant also came to be dismissed.
12
18. Thereafter, the appellant has preferred the first appeal with the
application to condone the delay of 546 days in filing the first
appeal. As pointed out earlier, there was a delay of 276 days in
filing the application to set aside the ex-parte decree. Pursuing the
proceedings in the application filed under Order IX Rule 13 CPC
has caused further delay of 270 days. Thus, there has been a total
delay of about 546 days in filing the first appeal. In the application
for condonation of delay, of course, the appellant has raised the
very same ground which was taken in the application filed under
Section 5 of the Limitation Act to set aside the ex-parte decree
which was not accepted in the earlier proceedings.
19. The learned counsel for the appellant-defendant has
submitted that a huge amount of Rs.45,00,000/- is said to have
been paid by cash which according to the learned counsel raises
serious doubts about the genuineness of such transaction. Per
contra, the learned Senior counsel for the respondent-plaintiff has
submitted that lending of Rs.45,00,000/- as hand loan is
substantiated by issuance of two post-dated cheques in favour of
the respondent by the appellant – one for the sum of Rs.25,00,000/-
and another for the sum of Rs.20,00,000/-. We are not inclined to
go into the merits of the contention of the parties. All that is to be
13
pointed out is that the appellant would have been well advised that if
he had filed the first appeal simultaneously along with the
application under Order IX Rule 13 CPC. The appellant has
however shown his bona fide by depositing Rs.25,00,000/- in
compliance with the orders of this Court dated 13.08.2018. The
said amount of Rs.25,00,000/- was permitted to be withdrawn by the
respondent-plaintiff. Considering the facts and circumstances of the
case and in the interest of justice, in our view, the appellant
deserves an opportunity to put forth his defence in the suit for
recovery of money. But to avail this opportunity, he must deposit the
balance amount of Rs.20,00,000/- as a condition precedent for
condonation of delay. In these terms, the impugned judgment is
accordingly liable to be set aside.
20. The delay of 546 days in filing the first appeal shall therefore
be condoned with condition that the appellant should deposit
Rs.20,00,000/- before the trial court-Principal District Judge,
Tiruchirappalli, to the credit of OS No.76 of 2015 on or before
28.02.2020, failing which, the application for condonation of delay
shall stand dismissed. On such deposit of Rs.20,00,000/- the same
shall be invested in a nationalised bank for a period of six months
with the provision of auto-renewal. The deposit of Rs.20,00,000/-
14
and also the earlier deposit of Rs.25,00,000/- would be subject to
the outcome of the appeal. On deposit of Rs.20,00,000/-, the
impugned judgment passed by the Madurai Bench of Madras High
Court in CMP(MD) No.6566 of 2017 in AS(MD) SR No. 27805 of
2017 is set aside and this appeal is allowed. The delay in filing the
appeal is condoned. The appeal shall be taken on file and the High
Court shall proceed with the same in accordance with law. We make
it clear that we have not expressed any opinion on the merits of the
matter. It is also made clear that the criminal complaints filed under
Section 138 of NI Act be proceeded on its own merits without being
influenced by any of the views expressed by this Court or by the
High Court.
………………………..J.
 [R. BANUMATHI]
………………………..J.
 [A.S. BOPANNA]
….………………………..J.
 [HRISHIKESH ROY]
New Delhi;
November 21, 2019
15

whether the insurance company can repudiate the claims in a case where the vehicle was met with accident and gutted to fire on the plea that notice was given belatedly - No. While granting claim on non-standard basis the National Commission set out in its judgment the guidelines issued by the Insurance Company about settling all such non-standard claims The said guidelines are set out below:- Sl.No. Description Percentage of settlement (I) Under declaration of licensed carrying capacity Deduct 3 years’ difference in premium from the amount of claim or deduct 25% of claim amount, whichever is higher (ii) Overloading of vehicles beyond licensed carrying capacity Pay claims not exceeding 75% of admissible claim. (iii) Any other breach of warranty/condition of policy including limitation as to use. Pay upto 75% of admissible claim. Relying upon the above guidelines given by the Hon’ble Supreme Court, it is seen that in the present matter one of the policy conditions has been clearly violated and that being an important condition, I deem it appropriate to allow the insurance claim @ 60% of the IDV of the vehicle. = In respect of an accident which had occurred in the night intervening 1st/2nd June, 2009 in which a truck owned by the appellant was damaged in fire, a claim was raised by the appellant. The claim was however, repudiated by the respondent-insurance company vide letter dated 9.9.2009 on the basis of a report of a Surveyor/Investigator that the fire was not natural.= In our view, there was thus no reason for the National Commission to hold that there was any violation of the requisite conditions on part of the appellant and there was no justification to reduce the claim to the extent of 60% of the IDV of the vehicle. The conclusions drawn and the directions issued by the State Commission, in our view, were quite correct and did not call for any interference. We, therefore, allow this appeal, set aside the view taken by the National Commission and restore the order dated 11.08.2015 passed by the State Commission.

whether the insurance company can repudiate the claims in a case where the vehicle was met with accident and gutted to fire on the plea that notice was given belatedly - No.                                    While granting claim on non-standard basis the National Commission set out in its
judgment the guidelines issued by the Insurance Company about settling all such non-standard claims
The said
guidelines are set out below:-
Sl.No.
Description
Percentage of
settlement
(I) Under declaration of licensed
carrying capacity
Deduct 3 years’
difference in
premium from the
amount of claim
or deduct 25% of
claim amount,
whichever is
higher
(ii) Overloading of vehicles beyond
licensed carrying capacity
Pay claims not
exceeding 75% of
admissible claim.
(iii) Any other breach of
warranty/condition of policy
including limitation as to use.
Pay upto 75% of
admissible claim.
Relying upon the above guidelines given by the Hon’ble Supreme Court, it is seen that in the present
matter one of the policy conditions has been clearly violated and that being an important condition, I deem it appropriate to allow the insurance claim @ 60% of the IDV of the vehicle. =
In respect of an accident which had occurred in the night intervening 1st/2nd June, 2009 in which a truck owned by the appellant was damaged in fire, a claim was raised by the appellant.
The claim was however, repudiated by the respondent-insurance company vide letter dated 9.9.2009 on the basis of a report of a Surveyor/Investigator that the fire was not natural.=
In our view, there was thus no reason for the National Commission to hold that there was any violation of the requisite conditions on part of the appellant and there was no justification
to reduce the claim to the extent of 60% of the IDV of the vehicle. The conclusions drawn and the directions issued by the State Commission, in our view, were quite correct and did not call for
any interference. We, therefore, allow this appeal, set aside the view taken by the National Commission and restore the order dated 11.08.2015 passed by the State Commission.



1
IN THE SUPREME COURT OF INDIA
 CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8796 OF 2019
KAMLESH Appellant(s)
 VERSUS
SHRIRAM GENERAL INSURANCE COMPANY LTD Respondent(s)
 O R D E R
UDAY UMESH LALIT. J
1) This appeal arises out of order dated 21.6.2019 passed by the
National Consumer Disputes Redressal Commission (“National
Commission” for short) at New Delhi in First Appeal No.797 of 2015.
2) In respect of an accident which had occurred in the night
intervening 1st/2nd June, 2009 in which a truck owned by the
appellant was damaged in fire, a claim was raised by the appellant.
The claim was however, repudiated by the respondent-insurance
company vide letter dated 9.9.2009 on the basis of a report of a
Surveyor/Investigator that the fire was not natural.
3) In the circumstances, Consumer Complaint No.81/2010 was filed
by the appellant before the State Consumer Disputes Redressal
Commission (“State Commission” for short), Lucknow, U.P. alleging
deficiency on part of the respondent. The principal prayer made in
the complaint was:
2
“a) That a direction may be issued to the opposite party
no.1 for repudiating the insurance claim of the
complainant amounting to Rs.13,50,000/- in his favour;”

4) The appellant also claimed compensation and costs. In its
counter affidavit the stand taken by the respondent was as under:
“6. That the respondent appointed independent surveyor
Shri S.K. Tiwari for spot survey on intimation of the
alleged fire loss of the insured Truck. The Surveyor
submitted spot report dated 23.6.2009 after inspecting the
spot and vehicle on 3.6.2009. The spot surveyor in its
report apart from pointing out the damages to the insured
truck due to alleged fire, specifically gave observations
to the effect that “it is the case of manipulations and
fabrication. It needs further investigation”. The spot
surveyor also submitted zerox copy of newspaper (Dainik
Jagaran Daily) dated 3.6.2009. The observation of the
spot surveyor to the effect that green grass and leaves
etc. surrounding the burnt parts was well in order i.e.
smiling, is very significant.
7. That in the light of observations and recommendation
made by Spot Surveyor, the answering respondent got the
matter investigated and through Sri Prabhakar Rai,
Advocate who submitted is detailed report dated 31.8.2009.
The investigator also categorically concluded in his
report based upon various facts, statements and
circumstances that the said incident of accident and fire
is doubtful.”
5) The matter was considered by the State Commission and by its
order dated 11.8.2015. The State Commission rejected the case set
up by the respondent that there was no natural fire and the vehicle
was set afire. It was, therefore concluded as under:
“It is established from the evidence produced by the
opponent insurance company that the truck of the
complainant was found in burnt condition at the place of
accident on the next day of alleged incident. In these
circumstances, we are of the view that the opponent
3
insurance company is deficient in services by repudiating
the insurance claim of the complainant. The insured value
of the Truck in question is admittedly Rs.13 Lakh 50
Thousand. Therefore, we are of the view that the
complainant is entitled to this amount with interest from
the opponent insurance company.”
The claim of the appellant was accepted and following
directions were issued:
“The opponent insurance company is hereby directed
to pay the complainant 13,50,000 with 9% interest from the
date of institution of the complaint till its payment
within a period of one month. The opponent will also pay
a Rs.10,000/- to the complainant as litigation expenses
within the fixed period.
If the above amount is not paid within the time
fixed then the opponent will be liable to pay interest at
the rate of 12% on the entire amount to the complainant.
Both the parties will bear their own litigation
expenses.”
6) The respondent being aggrieved, filed First Appeal No.797 of
2015 before the National Commission. It was observed that the
incident occurred during the night of 1st/2nd June, 2009 but the
intimation to the respondent was given only on 3.6.2009 and as such
there was infraction on part of the appellant. Relying on the
decision of this Court in Amalendu Sahu vs. Oriental Insurance Co.
Ltd. [(2010) 4 SCC 536], the National Commission quantified the
claim at 60% of IDV of the vehicle. The matter was considered by
the National Commission as under:-
“7. I have given a thoughtful consideration to the
arguments advanced by the learned counsel for the parties.
Though it has been argued by the learned counsel for the
4
appellant that the truck was deliberately put on fire to
get the insurance claim, but no independent proof has been
filed by the appellant to prove that the damage was stage
managed. Even the statements of the reporter as well as of
the sales man of the petrol pump relied upon by the
investigator have not been filed because those persons have
refused to give any statement in writing. This appeals to
logic that if a truck is purchased only 2-3 months back,
why the truck owner will put the truck into fire, because
in any case the insurance claim can be awarded to the value
of IDV at the most. Learned counsel for the Insurance
Company has not been able to pin point any purpose behind
the deliberate action of the owner of the truck to put the
truck on fire. Clearly there is delay in giving intimation
to the police and no proper justification has been given by
the complainant. Though, it is true that it is not a case
of theft where immediate intimation to the police is
required yet the role of FIR in such a case cannot be
minimised.
8. In the present case, the truck body has been burned
as stated by surveyor/investigator, still the matter could
not be investigated by the police properly as information
was given to the police on 06.06.2009 with delay of 4 days.
It is also important to note that the intimation to the
Insurance Company has been given on 03.06.2005 whereas the
condition No.1 of the policy requires that in case of
accident immediate notice will be given to the Insurance
Company to enable the Insurance Company to appoint a
surveyor to have the spot inspection as quickly as
possible. Here, the surveyor could only be appointed on
03.06.2005 who could not verify the recovery of truck by
the crane which is a crucial factor in the present case.
Definitely the respondent/complainant has violated the
condition of the policy by not immediately giving
information to the Insurance Company. The State Commission
has not given any importance to this delay and has allowed
the insurance claim for full IDV of the vehicle. Clearly,
the delay in giving intimation to the Insurance Company is
an important factor, which should be taken into
consideration while deciding the insurance claim. As
observed above, the accident of the vehicle and
consequently the vehicle catching fire are the proved
facts, respondent/complainant is entitled to insurance
claim. Hon’ble Supreme Court in Amalendu Sahu vs. Oriental
Insurance Co. Ltd. II(2010) C.P.J. 9 (S.C.), has observed:
“14. In this connection reference may be made to a
decision of National Commission in the case of New India
Assurance Company Limited v. Narayan Prasad Appaprasad
Pathak, reported in (2006) CPJ 144 (NC). In that case also
5
the question was, whether the insurance company can
repudiate the claims in a case where the vehicle carrying
passengers and the driver did not have a proper driving
licence and met with an accident. While granting claim on
non-standard basis the National Commission set out in its
judgment the guidelines issued by the Insurance Company
about settling all such non-standard claims. The said
guidelines are set out below:-
Sl.
No.

Description
Percentage of
settlement
(I) Under declaration of licensed
carrying capacity
Deduct 3 years’
difference in
premium from the
amount of claim
or deduct 25% of
claim amount,
whichever is
higher
(ii) Overloading of vehicles beyond
licensed carrying capacity
Pay claims not
exceeding 75% of
admissible claim.
(iii) Any other breach of
warranty/condition of policy
including limitation as to use.
Pay upto 75% of
admissible claim.
9. Relying upon the above guidelines given by the
Hon’ble Supreme Court, it is seen that in the present
matter one of the policy conditions has been clearly
violated and that being an important condition, I deem it
appropriate to allow the insurance claim @ 60% of the IDV
of the vehicle.
10. On the basis of the above discussion, the first
appeal No.797 of 2015 is partly allowed and the order of
the State Commission is modified to the extent that instead
of full IDV Rs.13,50,000/-, the appellant Company shall
be liable to pay 60% of the IDV i.e. Rs.8,10,000/- (rupees
eight lakh ten thousand only). This amount shall be paid by
the Insurance Company along with 7% p.a. interest from the
date of filing of the complaint. The litigation expenses
of Rs.10,000/- awarded by the State Commission is
maintained. The appellant is directed to comply with the
order within 45 days from the date of service/receipt of
this order.”
6
7) In this appeal questioning the correctness of the decision of
the National Commission, Mr. Ajay Kumar, learned advocate for the
appellant submitted that the intimation was given as early as
possible and there was no delay on part of the appellant; that
reliance on the decision in Amalendu Sahu was not quite correct;
and that the National Commission ought not to have reduced the
claim amount.
Ms. Meenakshi Midha, learned advocate appearing for the
respondent supported the decision of the National Commission and
submitted that there was delay in intimating the Insurance Company
and as such there was breach of warranty/condition of Policy. She
also submitted that the intimation to Police was given only on
6.6.2009 and therefore, the National Commission was justified in
reducing the claim amount.
8) We have gone through the policy in question. Under the caption
“conditions” which are part of the Policy, the relevant condition
states:-
“1. Notice shall be given in writing to the Company
immediately upon the occurrence of any accidental loss or
damage in the event of any claim and thereafter the
insured shall give all such information and assistance as
the Company shall require. Every letter claim writ
summons and/or process or copy thereof shall be forwarded
to the Company immediately on receipt by the Insured.
Notice shall also be given in writing to the Company
immediately the Insured shall have knowledge of any
impending prosecution, inquest or fatal inquiry in respect
of any occurrence which may give rise to a claim under
this Policy. In case of theft or criminal act which may be
7
the subject of a claim under this Policy the Insured shall
give immediate notice to the police and co-operate with
the Company in securing the conviction of the offender.”
9) The aforesaid condition has two limbs:-
i) Notice shall be given in writing to the Company
immediately upon the occurrence of any accidental
loss or damage; and
ii) In case of theft or criminal act which may be the
subject of a claim under this Policy, the Insured
shall give immediate notice to the police.
The second limb contemplates issuance of immediate notice to
the police only in cases of theft or criminal act. In the event of
an occurrence of any accidental loss or damage, the condition does
not contemplate issuance of any notice to the police.
10) The case that the appellant came up with was of an accidental
loss, and, therefore, if no immediate notice was issued to the
police, there was no infraction on part of the appellant. The
accident had occurred during the night of 1st and 2nd June, 2009 and
the intimation was given to the respondent on 3rd of June, 2009. In
our view, the notice was not delayed on any count and did satisfy
the requirements contemplated by the conditions in the policy.
11) The decision of this Court in Amalendu Sahoo (supra) had dealt
with fact situation where, in violation of the terms of the policy,
the vehicle in question was being used for hire and, therefore, the
guidelines, as set out in para 8 of the order impugned herein were
8
referred to and relied upon. As there was no violation on part of
the appellant, the principle on the basis of which the admissible
claim could be reduced, does not apply.
12) In our view, there was thus no reason for the National
Commission to hold that there was any violation of the requisite
conditions on part of the appellant and there was no justification
to reduce the claim to the extent of 60% of the IDV of the vehicle.
The conclusions drawn and the directions issued by the State
Commission, in our view, were quite correct and did not call for
any interference.
13) We, therefore, allow this appeal, set aside the view taken by
the National Commission and restore the order dated 11.08.2015
passed by the State Commission.
14) The appeal is thus allowed without any order as to costs.
 ........................J.
 (UDAY UMESH LALIT)
 .......................J.
 (VINEET SARAN)
New Delhi
November 19, 2019.

No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal = When both the courts arrived at concurrent findings of facts that the plaintiffs had failed to prove that Ramchandrarao Ingole had contributed to the purchase of the suit property or that at any time he had been a beneficiary of the purchase by residence or possession and the house had been constructed exclusively by Trimbakrao Ingole from his own funds and who remained in exclusive possession of the same relying on the admissions of PW­1 in his evidence. Ramchandrarao Ingole was held not to be a vendee of the suit property. The suit property consists of 7011 sq. ft. of lands, with a house constructed in 1974­ 75 thereupon leaving substantial vacant lands, was purchased jointly in the name of the two brothers by sale deed dated 29.03.1957. Trimbakrao Ingole expired in 1980 and Ramchandrarao Ingole also passed away on 22.03.1995. The plaintiffs as legal heirs of Ramchandrarao Ingole, relying on the sale deed filed Special Civil Suit No.268 of 1995 seeking partition and possession of their half share in the suit property. Both the courts arrived at concurrent findings of facts that the plaintiffs had failed to prove that Ramchandrarao Ingole had contributed to the purchase of the suit property or that at any time he had been a beneficiary of the purchase by residence or possession. The house had been constructed exclusively by Trimbakrao Ingole from his own funds and who remained in exclusive possession of the same relying on the admissions of PW­1 in his evidence. Ramchandrarao Ingole was held not to be a vendee of the suit property. High court reversed the same in second appeal Apex court held that We have considered the submissions on behalf of the parties, perused the respective pleadings and the evidence on record.The plaintiffs acknowledged the construction of a house on the suit property, seeking a share in the vacant lands fully aware of the nature of the construction which could not be partitioned. The defendants in their additional written statement had stated that originally both the brothers proposed to purchase the property together. Subsequently Ramchandrarao Ingole retracted and was not interested in purchasing the property due to funds crunch. Trimbakrao Ingole therefore alone paid the entire consideration. Since the stamp papers had already been purchased and the sale deed drafted in name of both the brothers, registration followed without any change. It is very important to notice that no rejoinder or replication was filed by the plaintiffs to this additional written statement. The High Court invoked the presumption under Sec.45 of TP Act, without proper consideration and appreciation of the facts considered and dealt with by two courts holding by reasoned conclusions why the presumption stood rebutted on the facts. The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW­1 in his evidence. The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable. No finding has been arrived at that any evidence had been admitted contrary to the law or that a finding was based on no evidence only in which circumstance the High Court could have interfered in the second appeal.

No finding has been arrived at that any evidence had been admitted contrary to the law or that  a finding was  based on  no evidence  only in which circumstance the High Court could have interfered in the second appeal = When both   the   courts arrived at concurrent findings of facts that the plaintiffs had failed to   prove   that   Ramchandrarao   Ingole   had   contributed   to   the purchase of the suit property or that at any time he had been a beneficiary of the purchase by residence or possession and the house had been constructed exclusively by Trimbakrao Ingole from his own funds and who remained in exclusive possession of the same relying on the admissions of PW­1 in his evidence.  Ramchandrarao Ingole was held not to be a vendee of the suit property.

The   suit   property consists of 7011 sq. ft. of lands, with a house constructed in 1974­ 75   thereupon   leaving   substantial   vacant   lands,   was   purchased jointly   in   the   name   of   the   two   brothers   by   sale   deed   dated 29.03.1957. 
Trimbakrao Ingole expired in 1980 and Ramchandrarao Ingole also passed away on 22.03.1995.  
The plaintiffs as legal heirs of Ramchandrarao Ingole, relying on the sale deed filed Special Civil Suit No.268 of 1995 seeking partition and possession of their half share in the suit property.
Both   the   courts arrived at concurrent findings of facts that the plaintiffs had failed to   prove   that   Ramchandrarao   Ingole   had   contributed   to   the purchase of the suit property or that at any time he had been a beneficiary of the purchase by residence or possession. 
The house had been constructed exclusively by Trimbakrao Ingole from his own funds and who remained in exclusive possession of the same relying on the admissions of PW­1 in his evidence.  Ramchandrarao Ingole was held not to be a vendee of the suit property.
High court reversed the same in second appeal
Apex court held that 
 We have considered the submissions on behalf of the parties, perused the respective pleadings and the evidence on record.The plaintiffs acknowledged the construction of a house on the suit property, seeking a share in the vacant lands fully aware of the nature   of   the   construction   which   could   not   be   partitioned.   
The defendants in their additional written statement had stated that originally   both   the   brothers   proposed   to   purchase   the   property together.   
Subsequently Ramchandrarao Ingole retracted and was  not interested in purchasing the property due to funds crunch. Trimbakrao   Ingole   therefore   alone   paid   the   entire  consideration. 
Since the stamp papers had already been purchased and the sale deed drafted in name of both the brothers, registration followed without any change.  
It is very important to notice that no rejoinder or replication was filed by the plaintiffs to this additional written statement.  
The   High   Court   invoked   the   presumption under Sec.45 of TP Act,  without   proper consideration and appreciation of the facts considered and dealt with   by   two   courts   holding   by   reasoned   conclusions   why   the presumption stood rebutted on the facts.   The High Court also committed an error of record by holding that there was no evidence that Trimbakrao Ingole alone had constructed the house, a finding patently contrary to the admission of PW­1 in his evidence.  The fact that mutation also was done in the name of Trimbakrao Ingole alone which remain unchallenged at any time was also not noticed. 
The conclusion of the High Court that improper appreciation of evidence amounted to perversity is completely unsustainable.  No finding has been arrived at that any evidence had been admitted contrary to the law or that  a finding was  based on  no evidence  only in which circumstance the High Court could have interfered in the second appeal.


NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).8859 OF 2019
(arising out of SLP (Civil) No(s). 16697 of 2018)
NARESH AND OTHERS ...APPELLANT(S)
VERSUS
HEMANT AND OTHERS          ...RESPONDENT(S)
JUDGMENT
NAVIN SINHA, J.
Leave granted.
2. The appellants who were the original defendants in the Suit
are   aggrieved   by   the   order   of   the   High   Court   allowing   the
respondents­plaintiffs’   Second   Appeal,   upsetting   the   concurrent
findings of facts by two courts.  The parties shall be referred to by
their respective positions in the Suit for better appreciation and
convenience.
3. The predecessors of the plaintiffs and the  defendants  were
brothers   namely,   Ramchandrarao   Ingole   and   Trimbakrao   Ingole.
1
They   partitioned   among   themselves   in   1952.   The   suit   property
consists of 7011 sq. ft. of lands, with a house constructed in 1974­
75   thereupon   leaving   substantial   vacant   lands,   was   purchased
jointly   in   the   name   of   the   two   brothers   by   sale   deed   dated
29.03.1957. Trimbakrao Ingole expired in 1980 and Ramchandrarao
Ingole also passed away on 22.03.1995.  The plaintiffs as legal heirs
of Ramchandrarao Ingole, relying on the sale deed filed Special Civil
Suit No.268 of 1995 seeking partition and possession of their half
share in the suit property.
4. The suit was dismissed by the Trial Court. The first appeal
preferred   by   the   plaintiffs   was   also   dismissed.   Both   the   courts
arrived at concurrent findings of facts that the plaintiffs had failed
to   prove   that   Ramchandrarao   Ingole   had   contributed   to   the
purchase of the suit property or that at any time he had been a
beneficiary of the purchase by residence or possession. The house
had been constructed exclusively by Trimbakrao Ingole from his
own funds and who remained in exclusive possession of the same
relying on the admissions of PW­1 in his evidence.  Ramchandrarao
Ingole was held not to be a vendee of the suit property.
2
5. Shri   V.C.   Daga,   learned   senior   counsel   appearing   for   the
appellants, submitted that the High Court in a Second Appeal under
Section 100 of the Civil Procedure Code should not have interfered
with   the   concurrent   findings   of   facts   by   two   courts   that
Ramchandrarao Ingole was not and was never intended to be a
beneficiary of the purchase.  The presumption under Section 45 of
the Transfer of Property Act (hereinafter referred to as ‘the Act’), by
reason of his name being mentioned in the sale deed as a vendee
also was rebuttable and not absolute. Two courts on appreciation of
the   oral   evidence,   were   satisfied   for   reasons   recorded   that
Ramchandrarao Ingole was never a beneficiary or in joint ownership
of the suit property.   Trimbakrao Ingole alone was present at the
time of registration and the stamp papers were also purchased by
him.  The construction was also raised by him alone from his own
funds,   acknowledged   by   PW­1   in   his   evidence.   Ramchandrarao
Ingole never raised any claim for share in the property either during
the life time of Trimbakrao Ingole or for fifteen years thereafter till
his own death.  It is only after the passing away of Ramchandrarao
Ingole that his legal heirs staked claim for partition based merely on
3
the recitals in the sale deed.  Section 92 of the Indian Evidence Act
has no application in the facts of the case as it is applicable only in
case of a bilateral document relying on Bai Hira Devi and others
vs. Official Assignee of Bombay, AIR 1958 SC 448.  The present
sale deed was a unilateral document executed by the vendor alone.
It was lastly submitted that the house was built in ‘L’ shape and by
design was incapable of being divided. The plaintiffs, as evident from
their own pleadings were indulging in speculative litigation, eyeing
the vacant area of the suit property.
6. Shri Pallav Sisodiya, learned senior counsel appearing for the
respondents, submitted that the suit property was purchased by
both the brothers together in view of their cordial relations. The
cordiality ended with the death of Ramchandrarao Ingole. Thus, the
suit came to be filed after his death.  Relying on the recitals in the
sale deed, reading the same in conjunction with Section 45 of the
Act, it was submitted that Ramchandrarao Ingole was co­owner by
operation of law.  The fact that he may not have been in possession
does not raise any estoppel precluding him or his legal heirs from
asserting their rights, relying upon  Suraj   Rattan   Thirani   and
4
others vs. Azamabad Tea Co. Ltd. And others, (1964) 6 SCR 192.
Signature of the vendee on the sale deed was not mandatory, as
held in Aloka Bose vs. Parmatma Devi and others, (2009) 2 SCC
582.  The fact that Trimbakrao Ingole may have signed at the time
of registration on the reverse of the deed or that his name may have
been mentioned as the purchaser of the stamp papers does not
make him and his legal heirs the exclusive owners of the property.
The oral evidence by both sides was insufficient to exclude the
rights  of  the   plaintiffs.  The  appellants  were  unable  to  lead  any
evidence   under   the   second   and   third   proviso   to   Section   92   for
rebutting the presumption in the law in favour of the plaintiffs
under Section 45 of the Act.   The fact that the original sale deed
may have been produced by the  defendants  cannot  be proof of
exclusive ownership.   The findings in favour of the defendants by
the Trial Court and the First Appellate Court are only in the realm of
probabilities.   The High Court rightly held in the nature of the
evidence, that the conclusions arrived at by the two courts below
were, therefore, perverse.
5
7. We have considered the submissions on behalf of the parties,
perused the respective pleadings and the evidence on record.  The
plaintiffs acknowledged the construction of a house on the suit
property, seeking a share in the vacant lands fully aware of the
nature   of   the   construction   which   could   not   be   partitioned.   The
defendants in their additional written statement had stated that
originally   both   the   brothers   proposed   to   purchase   the   property
together.   Subsequently Ramchandrarao Ingole retracted and was
not interested in purchasing the property due to funds crunch.
Trimbakrao   Ingole   therefore   alone   paid   the   entire   consideration.
Since the stamp papers had already been purchased and the sale
deed drafted in name of both the brothers, registration followed
without any change.  It is very important to notice that no rejoinder
or replication was filed by the plaintiffs to this additional written
statement.  
8. The evidence was in the nature of oath versus oath by the legal
heirs of the two brothers. No documentary evidence except for the
sale deed was led. The Trial Court correctly noticed the gap of 36
days between the preparation of the sale deed on 29.03.1957 and its
6
subsequent registration on 03.05.1957 as a circumstance to accept
the   contention   of   the   defendants   that   Ramchandrarao   Ingole
retracted   from   any   contribution   and   his   status   as   a   vendee   or
beneficiary of the purchase. Since registration on 03.05.1957 till the
institution of the suit by the legal heirs of Ramchandrarao Ingole,
38 years later, he did not prefer any claim since 03.05.1957 till his
brothers death in 1980, including for 15 long years till his own
death on 23.03.1995. Thereafter, PW­1 in his evidence admitted
that the construction of the house had been made by Trimbakrao
Ingole alone.  There is no evidence that this construction was made
from joint family funds.  It is an undisputed fact that the plaintiffs
at no point of time ever since purchase resided in the house or upon
the suit lands or enjoyed the same in any manner let alone incurred
any expenditure on the same. 
  
9. The claim for a presumption under Section 45 of the Act in
favour of the plaintiffs was raised for the first time before the First
Appellate Court but was negated in light of the factual findings.
Importantly,   it   was   held   that   mere   failure   of   the   defendants   to
adduce satisfactory evidence that Trimbakrao Ingole had paid the
7
entire consideration did not absolve the plaintiffs of their duty to
establish their own claim in accordance with law by satisfactory
evidence to substantiate the presumption sought to be relied upon.
In other words, the appellate court correctly held that the weakness
of   the   defence   could   not   become   the   strength   of   the   plaintiff,
especially when the defendants were disputing their claims.  
10. Section 45 of the Transfer of Property Act read as follows:
“45.   Joint   transfer   for   consideration.—Where
immoveable property is transferred for consideration
to two or more persons and such consideration is paid
out of a fund belonging to them in common, they are,
in   the   absence   of   a   contract   to   the   contrary,
respectively   entitled   to   interests   in   such   property
identical, as nearly as may be, with the interests to
which they were respectively entitled in the fund; and,
where   such   consideration   is   paid   out   of   separate
funds belonging to them respectively, they are, in the
absence   of   a   contract   to   the   contrary,   respectively
entitled to interests in such property in proportion to
the   shares   of   the   consideration   which   they
respectively advanced. 
In the absence of evidence as to the interests in the
fund to which they were respectively entitled, or as to
the   shares   which   they   respectively   advanced,   such
persons shall be presumed to be equally interested in
the property.”
8
11. The   High   Court   invoked   the   presumption   without   proper
consideration and appreciation of the facts considered and dealt
with   by   two   courts   holding   by   reasoned   conclusions   why   the
presumption stood rebutted on the facts.   The High Court also
committed an error of record by holding that there was no evidence
that Trimbakrao Ingole alone had constructed the house, a finding
patently contrary to the admission of PW­1 in his evidence.  The fact
that mutation also was done in the name of Trimbakrao Ingole alone
which remain unchallenged at any time was also not noticed. The
conclusion of the High Court that improper appreciation of evidence
amounted to perversity is completely unsustainable.  No finding has
been arrived at that any evidence had been admitted contrary to the
law or that  a finding was  based on  no evidence  only in which
circumstance the High Court could have interfered in the second
appeal.
12.  The High Court therefore manifestly erred by interfering with
the concurrent findings on facts by two courts below in exercise of
powers   under   Section   100,   Civil   Procedure   Code,   a   jurisdiction
9
confined to substantial questions of law only. Merely because the
High Court may have been of the opinion that the inferences and
conclusions   on   the   evidence   were   erroneous,   and   that   another
conclusion to its satisfaction could be drawn, cannot be justification
for the High Court to have interfered.   
13. In Madamanchi Ramappa vs. Muthaluru Bojappa, (1964) 2
SCR 673, this court with regard to the scope for interference in a
second appeal with facts under Section 100 of the Civil Procedure
Code observed as follows:
“12.  ….The admissibility of evidence is no doubt a
point of law, but once it is shown that the evidence
on which courts of fact have acted was admissible
and   relevant,   it   is   not   open   to   a   party   feeling
aggrieved by the findings recorded by the courts of
fact to contend before the High Court in second
appeal that the said evidence is not sufficient to
justify the findings of fact in question. It has been
always recognised that the sufficiency or adequacy
of evidence to support a finding of fact is a matter
for decision of the court of facts and cannot be
agitated   in   a   second   appeal.   Sometimes,   this
position   is   expressed   by   saying   that   like   all
questions   of   fact,   sufficiency   or   adequacy   of
evidence in support of a case is also left to the jury
for   its   verdict.   This   position   has   always   been
accepted   without   dissent   and   it   can   be   stated
without any doubt that it enunciates what can be
10
properly   characterised   as   an   elementary
proposition.   Therefore,   whenever   this   Court   is
satisfied that in dealing with a second appeal, the
High Court has, either unwittingly and in a casual
manner,   or   deliberately   as   in   this   case,
contravened   the   limits   prescribed   by   s.   100,   it
becomes the duty of this Court to intervene and
give effect to the said provisions.  It may be that in
some   cases,   the   High   Court   dealing   with   the
second   appeal   is   inclined   to   take   the   view   that
what it regards to be justice or equity of the case
has not been served by the findings of fact recorded
by   courts   of   fact;   but   on   such   occasions   it   is
necessary to remember that what is administered
in   courts   is   justice   according   to   law   and
considerations   of   fair   play   and   equity   however
important they may be, must yield to clear and
express  provisions  of  the  law.  If in   reaching  its
decisions   in   second   appeals,   the   High   Court
contravenes the express provisions of section 100,
it would inevitably introduce in such decisions an
element of disconcerting unpredictability which is
usually associated with gambling; and that is a
reproach which judicial process must constantly
and scrupulously endeavour to avoid.”
14. Though precedents abound on this settled principle of law, we
do not consider it necessary to burden our discussion unnecessarily
except to rely further on Gurdev Kaur and others vs. Kaki and
others, (2007) 1 SCC 546, holding as follows:
“71. The fact that, in a series of cases, this Court
was   compelled   to   interfere   was   because   the   true
legislative intendment and scope of Section 100 CPC
11
have neither been appreciated nor applied. A class
of judges while administering law honestly believe
that, if they are satisfied that, in any second appeal
brought   before   them   evidence   has   been   grossly
misappreciated either by the lower appellate court
or   by   both   the   courts   below,   it   is   their   duty   to
interfere, because they seem to feel that a decree
following upon a gross misappreciation of evidence
involves   injustice   and   it   is   the   duty   of   the   High
Court to redress such injustice. We would like to
reiterate that the justice has to be administered in
accordance with law.
xxxx
73. The Judicial Committee of the Privy Council as
early as in 1890 stated that there is no jurisdiction
to entertain a second appeal on the ground of an
erroneous   finding   of   fact,   however   gross   or
inexcusable  the  error   may  seem   to   be,  and   they
added a note of warning that no court in India has
power to add to, or enlarge, the grounds specified in
Section 100.
xxxx
81.   Despite   repeated   declarations   of   law   by   the
judgments of this Court and the Privy Council for
over a century, still the scope of Section 100 has not
been correctly appreciated and applied by the High
Courts in a large number of cases. In the facts and
circumstances of this case the High Court interfered
with   the   pure   findings   of   fact   even   after   the
amendment of Section 100 CPC in 1976. The High
Court would not have been justified in interfering
with the concurrent findings of fact in this case even
prior to the amendment of Section 100 CPC. The
judgment of the High Court is clearly against the
provisions of Section 100 and in no uncertain terms
clearly violates the legislative intention.
12
82.   In   view   of   the   clear   legislative   mandate
crystallised by a series of judgments of the Privy
Council and this Court ranging from 1890 to 2006,
the High Court in law could not have interfered with
pure findings of facts arrived at by the courts below.
Consequently, the impugned judgment is set aside
and this appeal is allowed with costs.”
15. The   order   of   the   High   Court   interfering   with   concurrent
findings   of   facts   by   two   courts   is,   therefore,   held   to   be
unsustainable in exercise of the powers under Section 100 of the
Civil Procedure Code. The order of the High Court is consequently
set aside. The orders dated 06.03.1998 and 13.06.2002 of the Trial
Court and the First Appellate Court are restored.   The suit of the
plaintiffs is dismissed.  The present appeal is allowed.
.……………………….J.
(Ashok Bhushan)
………………………..J.
   (Navin Sinha) 
New Delhi,
November 19, 2019.
13

whether the plaintiff is wife of Hanumanthappa. Since the entire claim of the plaintiff is based upon her marriage with Hanumanthappa, 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. This Court in Varada Bhavanarayana Rao v. State of A.P., held that in terms of Section 102 of the Evidence Act, 18723, 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. It was held as under:- “15. That being the position, the question on which of the contending parties the burden of proof would lie has to be decided on the relevant provisions of the Evidence Act. Section 101 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 102 provides that 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. Section 103 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the burden of proof of that fact shall lie on any particular person.” 13. We find that the High Court has committed illegality in holding that since the defendants have denied marriage, it cannot be asserted by the defendants that the marriage of the plaintiff with Hanumanthappa was not a valid marriage. The plaintiff has led evidence to the effect that the marriage was solemnized in the office of Sub-Registrar vide Ex.P/1. Ex.P/1 has been rightly found to be not a certificate of registration of marriage under the Special Marriage Act, 1954 and that there is no evidence that any ceremony has taken place. In the agreement of marriage (Ex.P/1), it is only stated that both parties are of same caste and with the permission and consent of both of their fathers, they have entered into this agreement of marriage. This type of marriage is not recognized in law as Section 7 of the Act contemplates that the marriage can be solemnized in accordance with customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptpadi, the marriage becomes complete and binding when the seventh step is taken. 14. The plaintiff has not led any evidence of solemnization of marriage as provided under sub-clause (2) of Section 7 of the Act or by leading any evidence of customary rites and ceremonies. The burden to prove marriage was on the Plaintiff alone. The defendants have denied marriage of the Plaintiff, therefore, the burden to prove marriage was on the plaintiff alone. Apart from such fact, the marriage cannot be said to be taken place in terms of Section 5(v) of the Act which is to the effect that the parties are not sapindas to each other, unless the custom or usage governing each of them permits of a marriage between the two. Such marriage is a void marriage but, on a petition, preferred by either party thereto. 15. Hanumanthappa, a party to the marriage died soon after the socalled marriage. Therefore, the question required to be examined is whether the alleged marriage which is between the persons of less than 21 years and 18 years and between the prohibited degree is a valid marriage. The plaintiff will be entitled to the estate of Hanumanthappa only if she proves her valid marriage. The plaintiff has not pleaded any custom permitting marriage within the prohibited degree nor there is any proof of solemnization of any marriage by customary ceremonies and rites, therefore, the plaintiff will not be entitled to succeed only on the basis of alleged registration of an agreement of marriage. In the absence of customary ceremonies or the custom permitting marriage between the prohibited degree, the plaintiff has no legal right to claim the share in the property only on the basis that some of the witnesses produced by her admitted that she married Hanumanthappa.

whether the plaintiff is wife of Hanumanthappa. Since the entire claim of the plaintiff is based
upon her marriage with Hanumanthappa, 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. 
This Court in Varada Bhavanarayana Rao v. State of A.P., held that in terms of Section 102 of the Evidence Act, 18723, 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. It was held as under:-
“15. That being the position, the question on which of the
contending parties the burden of proof would lie has to be
decided on the relevant provisions of the Evidence Act.
Section 101 of the Evidence Act provides that whoever
desires any court to give judgment as to any legal right or
liability dependent on the existence of facts which he
asserts, must prove that those facts exist. Section 102
provides that 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. Section 103 provides that the burden
of proof as to any particular fact lies on that person who
wishes the Court to believe in its existence, unless it is
provided by any law that the burden of proof of that fact
shall lie on any particular person.”
13. We find that the High Court has committed illegality in holding that since the defendants have denied marriage, it cannot be asserted by the defendants that the marriage of the plaintiff with
Hanumanthappa was not a valid marriage. The plaintiff has led evidence to the effect that the marriage was solemnized in the office of Sub-Registrar vide Ex.P/1. Ex.P/1 has been rightly found to
be not a certificate of registration of marriage under the Special Marriage Act, 1954 and that there is no evidence that any ceremony has taken place.
In the agreement of marriage (Ex.P/1),
it is only stated that both parties are of same caste and with the
permission and consent of both of their fathers, they have entered
into this agreement of marriage. This type of marriage is not
recognized in law as Section 7 of the Act contemplates that the
marriage can be solemnized in accordance with customary rites
and ceremonies of either party thereto and where such rites and
ceremonies include the Saptpadi, the marriage becomes complete
and binding when the seventh step is taken.
14. The plaintiff has not led any evidence of solemnization of marriage
as provided under sub-clause (2) of Section 7 of the Act or by
leading any evidence of customary rites and ceremonies. The
burden to prove marriage was on the Plaintiff alone. The
defendants have denied marriage of the Plaintiff, therefore, the
burden to prove marriage was on the plaintiff alone. Apart from
such fact, the marriage cannot be said to be taken place in terms of
Section 5(v) of the Act which is to the effect that the parties are not
sapindas to each other, unless the custom or usage governing each
of them permits of a marriage between the two. Such marriage is a
void marriage but, on a petition, preferred by either party thereto.
15. Hanumanthappa, a party to the marriage died soon after the socalled marriage. Therefore, the question required to be examined is whether the alleged marriage which is between the persons of
less than 21 years and 18 years and between the prohibited degree is a valid marriage. The plaintiff will be entitled to the estate of Hanumanthappa only if she proves her valid marriage. The plaintiff
has not pleaded any custom permitting marriage within the prohibited degree nor there is any proof of solemnization of any marriage by customary ceremonies and rites, therefore, the
plaintiff will not be entitled to succeed only on the basis of alleged registration of an agreement of marriage. 
In the absence of customary ceremonies or the custom permitting marriage between the prohibited degree, the plaintiff has no legal right to claim the
share in the property only on the basis that some of the witnesses
produced by her admitted that she married Hanumanthappa.

with great respect to the Apex court  - a marriage between uncle and niece is not prohibited degree in southern states

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3050 OF 2010
RATHNAMMA & ORS. .....APPELLANT(S)
VERSUS
SUJATHAMMA & ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. Defendant No.2, defendant No.5 and legal heirs of defendant No.4
are in appeal aggrieved against the judgment passed by High
Court of Karnataka on 3rd April, 2008 dismissing their second
appeal maintaining the judgment and decree passed by the First
Appellate Court on 2nd July, 2005 whereby the suit for partition filed
by plaintiff Sujathamma was decreed.
2. The following Genealogical Tree would be necessary to appreciate
the dispute between the parties:-
1
“GENEALOGICAL TREE
Sonnappa
(Defendant No. 1)
Son Daughter Daughter Daughter
Hanumanthappa Sonnamma Kenchamma Lakshmamma
(dead) (Def No. 1(a)) (Def No.1(b)) (Def No.1(c))
(*Sujathamma is the daughter
of Muniyappa and Sonnamma)
Son
Venkatarayappa Rathnamma
(dead) (Def No. 2)
Gowramma Rajappa Naryanaswamy
(Def No. 3) (Def No. 4) (Def No. 5)
Note :
*Sujathamma claims to be married to Hanumanthappa.”
3. Defendant No. 1 Sonnappa died during the pendency of the suit
leaving behind two sons - Venkatarayappa and predeceased son -
Hanumanthappa and three daughters - Sonnamma, Kenchamma
and Lakshmamma. Sonnamma, Kenchamma and Lakshmamma
have been brought on record as legal heirs of defendant No. 1. The
plaintiff - Sujathamma, maternal grand-daughter of Sonnappa,
claims to have married Hanumanthappa on 7th March, 1986.
Hanumanthappa died on 15th October, 1986. The claim of the
plaintiff is that she is entitled to the share of the estate of
Sonnappa, as wife of deceased Hanumanthappa. It is the said
2
assertion which was accepted by the First Appellate Court and
maintained by the High Court.
4. The plaintiff filed the civil suit with the assertion that the parties
are related to each other as members of joint Hindu Undivided
Family. The plaintiff asserted that the first defendant i.e. Sonnappa
is her fathter-in-law. Since the property is said to be ancestral
property and that property stands in the name of the first
defendant Sonnappa, therefore, plaintiff claims that she is entitled
to the share of Hanumanthappa as his wife.
5. The daughter of the first defendant was married to the father of the
plaintiff. The stand of the defendants is that the father of the
plaintiff managed to obtain signatures of the first defendant by way
of malafide practices and that the first defendant never consented
for the marriage of his second son Hanumanthappa as he was
suffering from juvenile diabetes mellitus coma, cardio respiratory
arrest and such other symptoms. The plaintiff was about 14 years
of age at the time of death of Hanumanthappa and that she was
not fit for marriage. It was asserted that if any document is
produced by the plaintiff to show that she was married, it is a
concocted one. By way of a separate written statement, defendant
Nos. 2 to 5 denied the allegations of the plaintiff. It was pleaded as
under:
“12. The plaintiff is not entitled to any reliefs. The
true facts of the case are that the plaintiff is grand
daughter of first defendant and the plaintiff’s mother,
3
first defendant and plaintiff colluded with each other
and they have filed this suit in order to grab the
properties, the plaintiff is not at all wife of the said late
Hanumanthappa. Even as on the date of the death of
said Hanumanthappa, the said plaintiff was aged
about 14 years. Even the said Hanumanthappa was
also suffering from Juvenile Diabetes Mellitus coma,
Cardio respiratory arrest and such other symptoms.
Even he was not in position to marry or to give
consent for marriage since 6 years and never marriage
of the plaintiff with late Hanumanthappa had been
taken place.”
6. The parties went to trial with one of the issues being whether the
plaintiff is wife of late Hanumanthappa. To prove the said issue,
the plaintiff examined herself as PW-1. PW-2 is the father of the
plaintiff whereas PW-3 to PW-5 are the witnesses of an agreement
to marriage dated 7th March, 1986, who were examined to prove
plaintiff’s marriage with Hanumanthappa. PW-6 was examined to
prove the age of the deceased Hanumanthappa. PW-7 to PW-9 are
the daughters of deceased defendant No. 1. As per the birth
certificate (Ex.P/30), the date of birth of Hanumanthappa is 20th
June, 1966, that makes him 19 years 9 months at the time of his
marriage. On the other hand, the plaintiff in her statement stated
her age as 15 years at the time of marriage. However, the
defendants have produced Ex.D/3, Register of Admission of the
School, by confronting PW-6, Headmaster of the School. As per
Ex.D/3, the plaintiff was born on 5th June, 1975. As per the plaintiff,
an agreement of marriage was registered on 7th March, 1986. The
witnesses examined by the plaintiff have deposed that the
4
marriage was registered on the said date.
7. Admittedly, Hanumanthappa died on 15th October, 1986 i.e. within
eight months of the alleged marriage. The plaintiff, apart from the
oral evidence, relies upon a photograph (Ex.P/28) wherein the
plaintiff and Hanumanthappa are seen together. PW-2 to PW-5
have deposed that the photograph (Ex.P/28) was taken in Malur
after performing marriage in Sub-Registrar’s office. The learned
trial court found that Hanumanthappa was 19 years 9 months old
at the time of marriage and the plaintiff, as admitted by her in
cross-examination, was 15 years of age at the time of marriage. It
was, thus, held that the plaintiff and the deceased have not
attained the qualifying age at the time of registration in the office
of Sub-Registrar 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, 19551
, therefore, mere registration of an agreement of
marriage is not sufficient to prove marriage. The trial court also
took into consideration the statement of plaintiff admitting that the
deceased was suffering from some diseases earlier to the marriage
and her father performed marriage in a hurry with an intention to
get the property. Plaintiff deposed that she belongs to Vokkaliga
community and marriages were performed in the house and no
marriage in the family was performed in the Sub-Registrar’s office.
The learned trial court held that the marriage of the plaintiff with
1 for short, ‘Act’
5
the deceased is said to be proved but marriage is void ab initio in
terms of Section 24 of the Special Marriage Act, 1954 as both have
not attained the qualifying age for marriage. In the result, the trial
court dismissed the suit and held that defendant Nos. 2 to 5 are
entitled to 1/3rd share of the total scheduled property.
8. Both sets of parties went in appeal. The learned First Appellate
Court affirmed the findings of the trial court that marriage of the
plaintiff with deceased Hanumanthappa is established and that
Ex.D/3, the date of birth certificate of the plaintiff is not admissible
as it is not an authentic document. In the absence of proof of date
of birth, the First Appellate Court held that the trial court
committed an error in coming to the conclusion that the plaintiff
has not attained the age of marriage. The learned First Appellate
Court held that Ex.P/1 is not a proof of solemnization of marriage
under the provisions of the Special Marriage Act, 1954 as it is only
a contract of marriage which was registered. No marriage
certificate has been issued by the competent authority, therefore,
the parties cannot be deemed to have married under the Special
Marriage Act, 1954. However, the First Appellate Court held that
since the parties are Hindus and that if the marriage is neither void
or voidable under the Act, therefore, the provisions of age of
marriage are only directory in nature and not mandatory. The
marriage was held to be valid, consequently, the suit was decreed.
9.The High Court in second appeal held that there was a marriage
6
between plaintiff and Hanumanthappa and that the certificate
(Ex. P/1) is neithe   r marriage certificate nor issued to evidence the
marriage in terms of provisions of the Special Marriage Act, 1954
but only a piece of evidence supporting the version of the plaintiff
that her marriage has taken place with Hanumanthappa. The High
Court said that in law, a customary Hindu marriage can be proved
only on establishing that the parties to the marriage had gone
through the necessary observances but since the defendants have
denied the marriage itself, they cannot be permitted to turn around
to contend that it was not a valid marriage.
10. Learned counsel for the defendants argued that the plaintiff never
asserted that she married Hanumanthappa either under the Special
Marriage Act, 1954 or a marriage under custom. In fact, the
plaintiff has not pleaded that she married Hanumanthappa except
asserting that defendant No. 1 is her father-in-law. The defendant
No. 1 Sonnappa is maternal grand-father of the plaintiff, whereas
Hanumanthappa was son of defendant No. 1, meaning thereby, the
claim of the plaintiff is that she married her Uncle. It is not
disputed that Hanumanthappa was suffering from various diseases
and died within eight months of the alleged marriage. The stand of
the defendants is that there was no marriage and that the story of
marriage was created to take the share of the deceased
Hanumanthappa in the property.
7
11. Before we proceed further, some relevant provisions of the Hindu
Marriage Act, 1955 need to be extracted hereunder:
“5. Conditions for a Hindu marriage. –
(i) xx xx xx
(ii) at the time of the marriage, neither party,-
(a) is incapable of giving a valid consent of it in
consequence of unsoundness of mind; or
(b) though capable of giving a valid consent has
been suffering from mental disorder of such a kind
or to such an extent as to be unfit for marriage and
the procreation of children; or
(c) has been subject to recurrent attacks of insanity
or epilepsy;
(iii) xx xx xx
(iv) the parties are not within the degrees of
prohibited relationship unless the custom or usage
governing each of them permits of a marriage
between the two;
(v) the parties are not sapindas of each other,
unless the custom or usage governing each of them
permits of a marriage between the two;
xx xx xx
7. Ceremonies for a Hindu marriage.- (1) A
Hindu marriage may be solemnized in accordance
with the customary rites and ceremonies of either
party thereto. (2) Where such rites and ceremonies
include the saptapadi (that is, the taking of seven
steps by the bridegroom and the bride jointly before
the sacred fire), the marriage becomes complete
and binding when the seventh step is taken.
xx xx xx
11. Void marriages.- Any marriage solemnized
after the commencement of this Act shall be null
8
and void and may, on a petition presented by either
party thereto, against the other party be so
declared by a decree of nullity if it contravenes any
one of the conditions specified in clauses (i), (iv)
and (v), Section 5.”
12. One of the issues framed was whether the plaintiff is wife of
Hanumanthappa. Since the entire claim of the plaintiff is based
upon her marriage with Hanumanthappa, 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. This
Court in Varada Bhavanarayana Rao v. State of A.P.
2
, held that
in terms of Section 102 of the Evidence Act, 18723
, 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. It was held as under:-
“15. That being the position, the question on which of the
contending parties the burden of proof would lie has to be
decided on the relevant provisions of the Evidence Act.
Section 101 of the Evidence Act provides that whoever
desires any court to give judgment as to any legal right or
liability dependent on the existence of facts which he
asserts, must prove that those facts exist. Section 102
provides that 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. Section 103 provides that the burden
of proof as to any particular fact lies on that person who
wishes the Court to believe in its existence, unless it is
provided by any law that the burden of proof of that fact
shall lie on any particular person.”
13. We find that the High Court has committed illegality in holding that
since the defendants have denied marriage, it cannot be asserted
by the defendants that the marriage of the plaintiff with
2 AIR 1963 SC 1715
3 for short the “Evidence Act”
9
Hanumanthappa was not a valid marriage. The plaintiff has led
evidence to the effect that the marriage was solemnized in the
office of Sub-Registrar vide Ex.P/1. Ex.P/1 has been rightly found to
be not a certificate of registration of marriage under the Special
Marriage Act, 1954 and that there is no evidence that any
ceremony has taken place. In the agreement of marriage (Ex.P/1),
it is only stated that both parties are of same caste and with the
permission and consent of both of their fathers, they have entered
into this agreement of marriage. This type of marriage is not
recognized in law as Section 7 of the Act contemplates that the
marriage can be solemnized in accordance with customary rites
and ceremonies of either party thereto and where such rites and
ceremonies include the Saptpadi, the marriage becomes complete
and binding when the seventh step is taken.
14. The plaintiff has not led any evidence of solemnization of marriage
as provided under sub-clause (2) of Section 7 of the Act or by
leading any evidence of customary rites and ceremonies. The
burden to prove marriage was on the Plaintiff alone. The
defendants have denied marriage of the Plaintiff, therefore, the
burden to prove marriage was on the plaintiff alone. Apart from
such fact, the marriage cannot be said to be taken place in terms of
Section 5(v) of the Act which is to the effect that the parties are not
sapindas to each other, unless the custom or usage governing each
of them permits of a marriage between the two. Such marriage is a
void marriage but, on a petition, preferred by either party thereto.
10
15. Hanumanthappa, a party to the marriage died soon after the socalled marriage. Therefore, the question required to be examined
is whether the alleged marriage which is between the persons of
less than 21 years and 18 years and between the prohibited degree
is a valid marriage. The plaintiff will be entitled to the estate of
Hanumanthappa only if she proves her valid marriage. The plaintiff
has not pleaded any custom permitting marriage within the
prohibited degree nor there is any proof of solemnization of any
marriage by customary ceremonies and rites, therefore, the
plaintiff will not be entitled to succeed only on the basis of alleged
registration of an agreement of marriage. In the absence of
customary ceremonies or the custom permitting marriage between
the prohibited degree, the plaintiff has no legal right to claim the
share in the property only on the basis that some of the witnesses
produced by her admitted that she married Hanumanthappa.
16. This Court in a judgment reported as Salekh Chand (Dead) by
LRs v. Satya Gupta & Ors.
4
 while dealing with the claim of
adoption under the Hindu Adoption and Maintenance Act, 1966,
held as under:
“21. In Mookka Kone v. Ammakutti Ammal [AIR 1928
Mad 299] it was held that where custom is set up to
prove that it is at variance with the ordinary law, it
has to be proved that it is not opposed to public
policy and that it is ancient, invariable, continuous,
notorious, not expressly forbidden by the legislature
and not opposed to morality or public policy. It is not
disputed that even under the old Hindu Law,
4 (2008) 13 SCC 119
11
adoption during the lifetime of a male issue was
specifically prohibited. In addition, I have observed
that such an adoption even if made would be
contrary to the concept of adoption and the purpose
thereof, and unreasonable. Without entering into the
arena of controversy whether there was such a
custom, it can be said that even if there was such a
custom, the same was not a valid custom.
22. It is incumbent on party setting up a custom to
allege and prove the custom on which he relies.
Custom cannot be extended by analogy. It must be
established inductively and not by a priori methods.
Custom cannot be a matter of theory but must
always be a matter of fact and one custom cannot be
deduced from another. It is a well-established law
that custom cannot be enlarged by parity of
reasoning.
23. Where the proof of a custom rests upon a limited
number of instances of a comparatively recent date,
the court may hold the custom proved so as to bind
the parties to the suit and those claiming through
and under them; but the decision would not in that
case be a satisfactory precedent if in any future suit
between other parties fuller evidence with regard to
the alleged custom should be forthcoming. A
judgment relating to the existence of a custom is
admissible to corroborate the evidence adduced to
prove such custom in another case. Where, however
a custom is repeatedly brought to the notice of the
courts, the courts, may hold that the custom was
introduced into law without the necessity of proof in
each individual case.
24. Custom is a rule which in a particular family or a
particular class or community or in a particular
district has from long use, obtained the force of law.
Coming to the facts of the case PW 1 did not speak
anything on the position either of a local custom or of
a custom or usage by the community; PW 2, Murari
Lal claimed to be witness of the ceremony of
adoption, he was brother-in-law of Jagannath, son of
Pares Ram who is said to have adopted Chandra
Bhan. This witness was 83 years old at the time of
deposition in the court. He did not speak a word
either with regard to the local custom or the custom
of the community. PW 3 as observed by the lower
12
appellate court was only 43 years old at the time of
his deposition whereas the adoption had taken place
around 60 years back. He has, of course, spoken
about the custom but that is not on his personal
knowledge and this is only on the information given
by PW 2 Murari Lal. He himself did not speak of such
a custom. The evidence of the plaintiff was thus
insufficient to prove the usage or custom prevalent
either in the township of Hapur and around it or in
the community of Vaish.”
17. In the present case, the plaintiff has not proved custom of marriage
to her mother’s brother and/or judicial precedent recognizing such
marriage. In the absence of any precedent or custom of such
marriage, no judicial notice can be taken of a custom as argued by
the learned counsel for the plaintiff. In the absence of any pleading
or proof of custom, the argument that in Vokkaliga community,
such marriage can be performed cannot be accepted as no judicial
precedent was brought to the notice of the Court that such a
custom exists in the Vokkaliga community nor there is any instance
quoted in evidence of existence of such custom.
18. 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.
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19. Consequently, the present appeal is allowed while restoring the
judgment and decree of the learned Trial Court.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
NOVEMBER 15, 2019.
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