EASWARI Vs PARVATHI .
Bench: CHANDRAMAULI KR. PRASAD,PINAKI CHANDRA GHOSE
Case number: C.A. No.-001103-001103 / 2004
Diary number: 1430 / 2004
Advocates: R. NEDUMARAN Vs
M. QAMARUDDIN
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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)