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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1103  OF  2004

Easwari                            … Appellant

:Versus:

Parvathi & Ors.                             …  Respondents

J U D G M E N T

Pinaki Chandra Ghose,  J.

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

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

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

perusing  the  facts  and  the  evidence  on  record  by  the  said  

judgment  and order  allowed the second appeal  confirming the  

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

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

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The  respondents  herein  (plaintiffs  before  the  Trial  Court)  

filed  a  suit  for  declaration  and  injunction  with  regard  to  the  

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

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

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

decision the appellant  herein filed an appeal  before the Lower  

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

schedule property in favour of the plaintiffs (respondents herein)  

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

culminating in filing the second appeal.  

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

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

of deceased Ponnangatti Gounder. The disputes pertained to the  

properties  which  were  held  by  deceased  Ponnangatti  Gounder  

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

acquired the suit “A” schedule property through succession from  

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

property was purchased by Muniammal by registered conveyance  

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

enjoyment  of  Ponnangatti  Gounder  and  Muniammal  and  after

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

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

defendant and her brother, the second defendant that the said  

Ponnangatti  Gounder  married  the  first  defendant  as  a  result  

whereof she made a claim over the suit property.

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

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

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

plaintiffs. Assailing the said decree an appeal was preferred by  

the present appellant before the First Appellate Court. The First  

Appellate Court reversed the decree in respect of the schedule  

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

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

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

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

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

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

was confirmed by the Lower Appellate Court, the defendant has  

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

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

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

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

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

deceased  Ponnangatti  Gounder  and  whether  she  is  entitled  to  

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

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

the appellant herein before the Trial Court that Muniammal died  

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

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

herein in the Devasthanam of Sri Perianayaki Saneda Kanagagiri  

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

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

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

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

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

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

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

first  defendant  was  described  as  the  wife  of  Mannangatti  and  

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

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

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also produced to show that the first defendant was described as  

wife of the deceased Ponnangatti Gounder. The High Court duly  

assessed all documents and held that no reliance can be placed  

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

description of the first defendant as wife of Ponnangatti Gounder.  

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

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

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

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

difficult to prepare these documents for the said purpose. Hence  

the High Court did not place reliance on such exhibits.

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

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

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

custody  of  trustee  of  the  temple  and  the  said  trustee  while  

examining,  deposed  before  the  Court  in  his  cross-examination  

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

conducted in the temple. In these circumstances, the probative  

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

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

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

after assessing the document held that different descriptions of  

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

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

the said voters list.

8. The  High  Court  also  placed  reliance  on  Bhaurao  Shankar  

Lokhande & Anr. v. State of Maharashtra and Anr.1 and found that  

mere going through certain ceremonies with intention of marriage  

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

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

living  as  husband  and  wife  does  not  normally  give  them  the  

status of husband and wife.  

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

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

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

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

circumstances,  the  High  Court  held  that  the  alleged  marriage  

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

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

1 (AIR 1965 SC 1564)

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

although was produced from lawful custody of the trustee of the  

temple,  but  it  did  not  mention  anything  about  the  marriage  

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

The claim of the respondent herein that Murugan and Selvi were  

born to Ponnangatti but no birth certificate was produced before  

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

Lower Appellate Court, without proper evidence of marriage of the  

first  defendant  (appellant  herein)  with  Ponnangatti,  had  

erroneously come to the conclusion as if the marriage had been  

conducted  properly.  Similarly,  there  could  be  no  presumption  

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

cohabitation has not  been established.  In  these circumstances,  

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

and  judgment  of  the  First  Appellate  Court  and  confirmed  the  

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

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

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

firstly, that the High Court incorrectly allowed the Second Appeal  

without formulating a substantial question of law in light of this

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Court’s decision in Veerayee Ammal vs. Seeni Ammal2  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. Sivagami3  wherein it was held that:  

“17. …..In the Hindu Marriage Act,  1955,  there is  a State  amendment  by  the  State  of  Tamil  Nadu,  which  has  been  inserted as Section 7-A. The relevant portion thereof is as  follows:

“Section  7-A.  Special  provision  regarding  suyamariyathai  and  seerthiruththa  marriages.—(1)  This  section shall apply to any marriage between  any  two  Hindus,  whether  called  suyamariyathai  marriage  or  seerthiruththa  marriage or by any other name, solemnised   in the presence of relatives, friends or other   persons—

(a) by each party to the marriage declaring in   any language understood by the parties that   

2 (2002) 1 SCC 134 3 (2001) 7 SCC 487

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

(b) by each party to the marriage garlanding   the other or putting a ring upon any finger of   the other; or

(c) by the tying of the thali.

(2)(a) Notwithstanding anything contained in   Section 7, but subject to the other provisions   of this Act, all marriages to which this section   applies solemnised after the commencement   of  the  Hindu  Marriage  (Tamil  Nadu   Amendment)  Act,  1967,  shall  be  good  and  valid in law.

(b)  Notwithstanding  anything  contained  in   Section 7 or in any text, rule or interpretation   of Hindu law or any custom or usage as part   of that law in force immediately before the   commencement of the Hindu Marriage (Tamil   Nadu Amendment) Act, 1967, or in any other   law  in  force  immediately  before  such   commencement or in any judgment, decree   or  order  of  any  court,  but  subject  to  sub- section  (3),  all  marriages  to  which  this   section  applies  solemnised  at  any  time   before  such  commencement,  shall  be   deemed  to  have  been,  with  effect  on  and  from the date of the solemnization of each  such marriage, respectively,  good and valid   in law.

(3) * * *

(a) * * *

(i) - (ii) * * *

(b) - (c) * * *

(4) * * *”

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18. Section 7-A applies to any marriage between two  Hindus solemnised in the presence of relatives, friends  or other persons. The main thrust of this provision is  that the presence of a priest is not necessary for the  performance of a valid marriage. Parties can enter into  a  marriage in  the presence of  relatives  or  friends or  other persons and each party to the marriage should  declare in the language understood by the parties that  each takes the other to be his wife or, as the case may  be, her husband, and the marriage would be completed  by  a  simple  ceremony  requiring  the  parties  to  the  marriage to garland each other or put a ring upon any  finger  of  the  other  or  tie  a  thali.  Any  of  these  ceremonies, namely, garlanding each other or putting a  ring upon any finger of the other or tying a thali would  be sufficient to complete a valid marriage. Sub-section  (2)(a)  of  Section  7-A  specifically  says  that  notwithstanding  anything  contained  in  Section  7,  all  marriages  to  which  this  provision  applies  and  solemnised  after  the  commencement  of  the  Hindu  Marriage (Tamil Nadu Amendment) Act, 1967, shall be  good and valid in law.  

11. The  appellant  has  first  challenged  the  correctness  of  the  

High Court in allowing the Second Appeal under Section 100 of  

the Code, which  is reproduced as under:

“Section 100- Second appeal- (1) Save as otherwise  expressly provided in the body of this Code or by any   other law for the time being in force, an appeal shall lie   to the High Court from every decree passed in appeal   by any Court subordinate to the High Court, if the High   Court is satisfied that the case involves a substantial   question of law.

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(2)  An  appeal  may  lie  under  this  section  from  an   appellate decree passed exparte.

(3) In an appeal under this section, the memorandum  of appeal shall precisely state the substantial question   of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial   question  of  law  is  involved  in  any  case,  it  shall   formulate that question.

(5)  The  appeal  shall  be  heard  on  the  question  so   formulated and the respondent shall, at the hearing of   the appeal, be allowed to argue that the case does not   involve such question :

Provided  that  nothing  in  this  sub-section  shall  be   deemed to take away or abridge the power of the Court   to hear, for reasons to be recorded, the appeal on any   other substantial question of law, not formulated by it,   if it is satisfied that the case involves such question.”

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

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

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

interfere  in  second  appeal  when  finding  of  the  First  Appellate  

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

Manikrao & Anr.4 this Court held as under

“3. The findings of  fact concurrently  recorded by the  Trial Court as also by the Lower Appellate Court could  not  have  been  legally  upset  by  the  High  Court  in  a  

4 (1999) 3 SCC 573

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second  appeal  under  Section  100  CPC  unless  it  was  shown that the findings were perverse, being based on  no  evidence  or  that  on  the  evidence  on  record,  no  reasonable  person  could  have  come  to  that  conclusion.”

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

Nanilal Harakchand Shah (Dead) & Ors.5 this Court stated:  

“31. From the discussions in the judgment it  is  clear  that  the  High  Court  has  based  its  findings  on  the  documentary  evidence  placed  on  record  and  statements  made  by  some  witnesses  which  can  be  construed as admissions or conclusions. The position is  well settled that when the judgment of the final court of  fact  is  based  on  misinterpretation  of  documentary  evidence or on consideration of inadmissible evidence  or ignoring material evidence the High Court in second  appeal is entitled to interfere with the judgment. The  position is also well settled that admission of parties or  their  witnesses  are  relevant  pieces  of  evidence  and  should be given due weightage by courts. A finding of  fact ignoring such admissions or concessions is vitiated  in law and can be interfered with by the High Court in  second appeal.”

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

decision of this Court in Rattan Dev v. Pasam Devi6 wherein it was  

specifically stated that:

5 (2002) 6 SCC 404 6 (2002) 7 SCC 441

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“Non-application of mind by the appellate court to other  material,  though available,  and consequent  failure  of  the appellate court to discharge its judicial obligation,  did raise a question of law having a substantial impact  on the rights of the parties, and therefore, the second  appeal deserved to be heard on merits.”

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

Court cannot be precluded from reversing the order and judgment  

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

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

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

lower court have given concurrent findings, there is no absolute  

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

(See: Hafazat Hussain v. Abdul Majeed7)

12. Having  perused  the  impugned  judgment  in  the  Second  

Appeal and the judgment of the First Appellate Court which has  

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

High Court correctly formulated the substantial question of law,  

the same is produced as under:

7 (2001) 7 SCC 189

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“Whether the Lower Appellate Court erred in not taking   into account the law laid down in 1989 (2) L.W. 197   (DB)?”

In Mohan v. Santha Bai Ammal8 being the case referred to in the  

abovementioned question, it has been held that mere receipt of  

showing payment of money without obtaining and producing the  

marriage  certificate  or  without  summoning  production  of  the  

original marriage register maintained by the temple, may not be  

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

Court  while  answering  the  substantial  question,  found  no  

substantial evidence by which factum of marriage is established.  

13. After  perusing  the  documentary  evidence  and  other  

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

correct  in  entertaining  the  matter  in  second  appeal.  The  only  

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

Court correctly appreciated the evidence and concluded that the  

First  Appellate Court  without proper  evidence of marriage held  

that the marriage took place.  

8  1989 (2) L.W. 197

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

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

views  expressed  by  the  High  Court.  We  also  endorse  the  

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

evidence on record it cannot be said that the marriage between  

Ponnangatti Gounder and Easwari was proved.  

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

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

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

dismiss this appeal.   

………………………………..J.      (Chandramauli Kr. Prasad)

New Delhi;                                            ………....…………………….J. July 10, 2014                             (Pinaki Chandra Ghose)