EASWARIversusPARVATHI & ORS.

                        [2014] 8 $.C.R. 844


A                             EASWARI
                                  v.
                          PARVATHI & ORS.
                   (Civil Appeal No.1103 of 2004)
                           JULY 10, 2014
B
              [CHANDRAMAULI KR. PRASAD AND
                PINAKI CHANDRA GHOSE, JJ.]

        Code of Civil Procedure, 1908 - s. 100 - Second appeal
c - Scope of - Held: A second appeal can be allowed only when
    there is substantial question of law involved - However, High
    Court can interfere in second appeal. when finding of first
    appellate court is perverse due to misappreciation of evidence
    - There is no absolute ban on the High Court in second
0   appeal to interfere with the facts - In the present case, High .
    Court correctly formulated substantial question of law and was
    correct in entertaining the matter in second appeal.

       Succession - Claim of succession - By the second wife
  of the deceased - Held: Not entitled to succeed, as she failed
E to prove the marriage.

       Plaintiffs-respondents filed a suit for declaration and
  injunction in respect of 'Schedule A' and 'Schedule B'
  properties, as the legal heirs of 'P' and his predeceased
F wife 'M'. Schedule A property was ancestral property of
  'P' while Schedule B property was self -acquired property
  of 'M'. The case of the first defendant was that after the
  death of 'M', 'P'married her and as such she was also
  entitled to succeed the property in Schedule A as second
G wife of 'P'.
        In support of her case, she produced temple receipt
    from the lawful custody of the trustee of the temple. She
    also produced acco.unts of gifts made at the time. of

H                                844
           EASWARI v. PARVATHI & ORS.                  845

marriage, Voters List for two years, pass books of bank       A
accounts and banker's reply.

    Trial Court decreed the suit in respect of both the
properties. The first appellate court reversed the decree
as regards Schedule B property, but as regards Schedule       8
A property, held that first defendant was also entitled to
succeed as she had proved her marriage with 'P'.

     In second appeal, High Court disbelieved all the
documentary evidence produced in support of the
marriage except temple receipt. But in view of the            C
statement of the trustee of the temple held that probative
value of the receipt got diluted and hence dis.believed it.
It also held that the bare fact of a man and woman living
as husband and wife does not normally give them the
status of husband and wife.                                   D

     In appeal to this court, appellant-first defendant
contended that High Court incorrectly allowed the
second appeal without formulating a substantial question
of law; and that marriage of appellant-first defendant and    E
'P' was wrongly termed as invalid.

    Dismissing the appeal, the Court

     HELD: 1.1. The provision u/s. 100 CPC conveys that
a ~econd appeal can be allowed only when there is a           F
'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. The High Court cannot
be precluded from reversing the order and judgment of         G
the Lower Appellate Court if there is perversity in the
decision due to mis-appreciation of evidence. This holds
good especially in the 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     H
    846    SUPREME COURT REPORTS                           .
                                              [2014] 8 S.C.R.


A Court in second appeal to interfere with the facts. [Para
  11] [854-G; 856-B-C]
        Vidhyadhar v. Manikrao & Anr. (1999) 3 SCC 573: 1999
  (1) SCR 1168; Yadarao Dajiba Shrawane (dead) by LRS v.
B Nani/al Harakchand Shah (Dead) & Ors. (2002) 6 SCC 404;
  Rattan Dev v. Pasam Devi (2002) 7 SCC 441: 2002 (2)
  Suppl. SCR 394 ; Hafazat Hussain v. Abdul Majeed (2001)
  7 SCC 189; Mohan v. Santha Bai Ammal 1989 (2) L.W. 197
  - relied on.

C        Veerayee Ammal vs. Seeni Ammal (2002) 1 SCC 134 -
    referred to.

       1.2. The High Court correctly formulated the
  substantial question of law. The High Court in its
0 substantial question of law referred to a case wherein 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
E not be sufficient to establish the marriage. In the light of
  the same, the High Court while answering the substantial
  question, found no substantial evidence by which factum
  of marriage is established. In view of the documentary
  evidence and other evidence, the High Court was correct
F in entertaining the matter in second appeal. [Paras 12 and
  13] [856-D-G]

       2. The High Court. correctly assessed and appreciated
  the facts in the instant case. The reasoning given by the
  High Court is endorsed. From the evidence on reco'td it
G cannot be said that the marriage between the deceased
  and first defendant was proved. [Para 14] [857-B]

       Bhaurao Shankar Lokhande & Anr. v. State of
  Maharashtra and Anr. AIR :1965 SC 1564: 1965 SCR 837 -
H relied on.
           EASWARI v. PARVATHI & .ORS.                     847


   S. Nagalingam v. Sivagami (2001) 7 SCC 487: 2001 (2)          A
Suppl. SCR 454: 2001 (4) Suppl. SCR 467 - referred to.
                   Case Law Reference :
   1965 SCR 837                  relied on         Para 8
                                                                 B
   2001 (4) Suppl. SCR           referred to     Para 10
   2001 (2) Suppl. SCR 454       referred to     Para 10
   1999 (1) SCR 1168             relied on       Para 11
   c2002) 6 sec 404              relied on       Para 11         c
   2002 (2) Suppl. SCR 394       relied on       Para 11
   c2001) 1 sec 189              relied on       Para 11
   1989 (2) L.W. 197             relied on       Para 12         D
     CIVIL APP ELLATE JURISDICTION : Civil Appeal No.1103
of 2004.

     From the Judgment and Order dated 22.07.2003 in
Second Appeal No. 1806 of 1992 of the High Court of              E
Judicature at Madras.

    R. Nedumaran for the Appellant.

    Abhishek (For M. Qamaruddin) (A.C.) for the Respondents.
                                                                 F
    The Judgment of the Court was delivered by

      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       G
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.
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    848      SUPREME COURT REPORTS                 ·(2014] 8 S.C.R.


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

        The respondents herein (plaintiffs before the Trial Court)
  filed a suit for declaration and injunction with regard to the
  properties described as schedule "A" and schedule "B"
8 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
C (respondents herein) but r~rsed 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 Gounde.r. The disputes
D 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
E Muniammal by registered conveyance deed dated September
  14, 1970. Both were in possession and enjoyment of
  Ponnangatti Gounder and Muniammal and after their death the
  plaintiffs were and are in possession of the said properties.
  After the death of Muniammal, it is alleged by the first defendant
F and her brother, the second defendant that the said
  Ponnangatti Gounder married the first defendant as a resulr
  whereof she made a claim over the suit property.

       4. Issues were framed by the Trial Co.urt and after
  assessing the evidence, both oral and documentary, the Trial
G 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
H
             EASWARI v. PARVATHI & ORS.                        849
             [PINAKI CHANDRA GHOSE, J.]
and decree, second appeal was filed before the High Court by, A
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,              8
1970 through Ex.B-6 in respect.of which the decree passed by
the Trial Court was confirmed by the Lower Appellate· Court,
the defendant has no claim over the same. The dispute between
the parties is only in respect of the schedule "A" property in the
suit. Looking at the facts of the case, the primary question as        C
it appears to us, which has to be dealt with is w9ether 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   D
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 marrred to the first defendant,
the appellant h.erein in the Devasthanam of Sri Perianayaki
Saneda Kanagagiri Eswarar at Devikapuram. To prove the                 E
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       F
also produced Exs.B-1 and B-2 which are the voters list of 1978
and 1983 wherein it appears that the first defendant was
described as the wife of Mannangatti and Ponnangatti. The
pass books of the bank accounts for the year 1984 and 1985
being Exs. B-3 and B-4 and bankers' reply were also produced           G
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 8-6 as they only represent .the unilateral description
of the first defendant as wife of Ponnangatti Gounder. Similarly,
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    850     SUPREME COURT REPORTS                  [2014] 8 S.C.R.


A 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 P;onnangatti 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
B 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
C 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
D by the High Court, gets diluted. Other Exhibits being Exs. B-1
  and B-2 were also specifically dealt with by the High Court and
  the High Court after assessing the document held that different
  descriptions of the name of husband of the first respondent are
  given in the voters list. Therefore, the High Court did not place
E any reliance on the said voters list.

      8. The High Court also placed reliance on Bhaurao
  Shankar Lokhande & Anr. v. State of Maharashtra and Anr1· I
  and found that mere going through certain ceremonies with
F 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
G that there is no e\fidence 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

H 1. (AlR 1965 SC 1564).
              EASWARI v. PARVATHI & ORS.                    851
              [PINAKI CHANDRA GHOSE, J.]
should be proved only on the basis of legal presumption of long    A
co-habitation which is not present in the instance case. For the
proof of marriage, there is no evidence except Ex.B-8 which
although was produced from lawful custody of the trustee of the
temple, but it did not mention anything about the marriage
ceremony or the conduct and solemnization of the marriage at       B
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            C
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      0
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      E
grounds; firstly, that the High Court incorrectly allowed the
Second Appeal without formulating a substantial question of law
in lig~t of this Court's decision in Veerayee Ammal vs. Seeni
Amma/2 wherein it. has been held that as per Section 100 of
the Code of Civil Procedure, 1908 (hereinafter referred to as      F
"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      G
of this Court's decision in S. Nagalingam v. Sivagami3wherein
it was held that:

2.   (2002) 1 sec 134.
a.   (2001) 1 sec 487.
                                                                   H
    852      SUPREME COURT REPORTS                    [2014] 8 S.C.R.


A         "17 ...... In the Hindu Marriage Act, 1955, there is a
          Stateamendment by the State of Tamil Nadu, whicl1 has
          beeninserted as Section 7-A. The relevant portion thereof
          is asfollows:

          "Section 7-A. Special provision regarding
B         suyamariyathai and seerthiruththa marriages.-(1)
          This section shall apply to any marriage between any two
          Hindus, whethe; cafled suyamariyathai marriage or
          seerthiruththa marriage or by· any other name,
          solemnised in the presence of relatives, friends or other
c         persons-

          (a) by each party to the marriage declaring in any
          language understood by the parties that each takes the
          other to be his wife or, as the case may be, her husband;
o         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.
E
          (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, sh ail be good and valid in law.
F
           (b) Notwithstanding anything contained in Section 7 or in
           any text, rule or interpretation ofHindu law or any custom
           or usage as part of that law in force immediately before
           the commencement of the Hindu Marriage (Tamil Nadu
G         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, ;
H          shall be deemed to have been, with effect on and from
               EASWARI v. PARVATHI & -ORS.                 853
               [PINAKI CHANDRA GHOSE, J.]

    the date of the solemnization of each such marriage,           A
    respectively, good and valid in law.

     (3)     ***

     (a)     ***
                                                                   B
     (i)-(ii) * * *

     (b)-(c)            ***

     (4)       * * *"
                                                                   c
    18. Section 7-A applies to any marriage between
    twoHindus solemnised in the presence of relatives,
    friendsor other persons .. The main thrust of this provision
    isthat the presence of a priest is not necessary for
    theperformance of a valid marriage.·Parties can enter intoa    D
    marriage in lhe presence of relatives or friends orother
    persons and each party to the marriage shoulddeclare in
    the language understood by the parties thateach takes the
    other to be his wife or, as the case maybe, her husband,
    and the marriage would be completed by a simple                E
    ceremony requiring the parties to the marriage to garland
    each other or put a ring upon anyfinger of the other or tie
    a thali. Any of these ceremonies, namely, garlanding each
    other or putting aring upon any finger of the other or tying
    a thali wouldbe sufficient to complete a valid marriage.
                                                                   F
    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
    Na.du Amendment) Act, 1967, shall begood and valid in          G
    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:
                                                                   H
    854       SUPREME COURT REPORTS                 (2014] 8 S.C.R.


A         "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
B         Court is satisfied that the case involves a substantial
          question of Jaw.

          (2) An appeal may lie under this section f;om an
          appellate decrf!e passed exparte.
c         (3) In an appeal under this section, the me'morandum of
          appeal shall precisely state the substantial question of
          law involved in the appeal.

          (4) Where the High Court is satisfied that a substantial
D         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
E         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
F         substantial question of Jaw, not formulated by it, if it is
          satisfied that the case involves such question."

      A plain reading of the said provision CC?nveys that a.
  second appeal be allowed only when there is a 'substantial'
G 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


H   4.   (1999) 3 sec 573.
               ~ASWARI v. PARVATHI & ORS.                       855
               [PINAKI CHANDRA GHOSE, J.]
       "3. The findings of fact concurrently recorded by the Trial      A
      ·Court as also by the Lower Appellate Court could not have
       been legally upset by the High Court in a second appeal
       under Section 100 CPC unless it was shown that the
       findings were perverse, being based on no evidence or
       that on the evidence on record, no reasonable person             B
       could have come to that conclusion."

     Furthermore, in Yadarao Dajiba Shrawane (dead) by LRS
 v. Nani/al Harakchand Shah (Dead) & Ors. 5 this Court stated:

       "31. From the discussions in the judgment it is clear that       C
       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 iswell settled that when the
       judgment of the final court offact is based on                   D
       misinterpretation of documentaryevidence or on
       con·sideration of inadmissible evidence or ignoring material
       evidence the High Court in secondappeal is entitled to
       interfere with the judgment. Theposition is also well settled
       that admission of parties ortheir witnesses are relevant         E
       pieces of evidence and should be given due weightage
       by courts. A finding offact ignoring such admissions or
       concessions is vitiatedin law and can be interfered with by
       the High Court insecond appeal."
                                                                        F
       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:

       "Non-application of mind by t~e appellate court to
       othermaterial, though available, and consequent failure          G
       ofthe appellate court to discharge its judicial obligation.did
       raise a question of law having a substantial impacton the

 s.   c2002) s sec 404.
 s.   c2002) 1 sec 441.                                                 H
    856        SUPREME COURT REPORTS                [2014) 8 S.C.R.


A          rights of the parties, and therefore, the secondappeal
           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
8
  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 Coyrt in second appeal
C to interfere with the facts (See: Hafazat Hussain v. Abdul
  Majeed7)

       12. Having perused the impugnl;ld 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
D the High Court correctly formulated the substantial question of
  law, the same is produced as under:

         _, "Whether the Lower Appellate Court erred in not taking
         - into account the law laid down in 1989 (2) L. W 197 (DB)?"
E         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
F   temple, may not be sufficient to establish the marriage. In light
    of the same the High Court while answering the sucstantial
    question, found no substantial evidence by which factum of
    marriage is established.

G        13. After perusing the documentary evidence aod 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

H   7.    c2001) 7 sec 1as.
              EASWARI v. PARVATHI & ORS.                     857
              [PINAKI CHANDRA GHOSE, J.]
the High Court correctly appreciated the evidence and               A
concluded that the First Appellate Court without proper evidence
of marriage held that the marriage took place.

     14. In our opinion, the High Court correctly assessed and
appreciated the facts in the instant case and we concur with        8
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          C
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.

Kalpana K. Tripathy                             Appeal dismissed.   D -