Matha & ANR. Vs. R. Vijaya Renganathan & Ors.  INSC 413 (17 May
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7108 of
2003 Bharatha Matha & Anr. .......Appellants Versus R. Vijaya Renganathan
& Ors. .........Respondents ORDER Dr. B. S. CHAUHAN, J
appeal has been preferred against the Judgment and Order of the High Court of
Judicature at Madras dated 10th July, 2001 allowing the appeal filed by the
respondent No.1 against the judgment and decree of the 1st Appellate Court
dated 17.9.1986 affirming the judgment and decree of the Trial Court dated
7.3.1977 in O.S. No.269/1975 instituted by the predecessor-in-interest of the
present appellants for claiming the property in dispute and denying the share
to the respondent Nos. 2 to 5 or their predecessor-in-interest.
facts and circumstances giving rise to the present case are that the
predecessor-in-interest of the present appellants, Peria Mariammal instituted a
suit, being O.S. No. 269 of 1975 against the respondents and their
predecessor-in- interest claiming the share of her brother Muthu Reddiar, on
the ground that he died unmarried and intestate and that Smt. Rengammal, the
defendant No. 1 in the suit was a legally wedded wife of one Alagarsami
Reddiar, who was still alive, therefore, her claim that she had
live-in-relationship with plaintiff's brother Muthu Reddiar and had two
children from him, had to be ignored. The defendants/respondents contested the
suit denying the marriage between defendant No. 1 and the said Alagarsami
Reddiar. The Trial Court decreed the suit vide Judgment and decree dated 7th
March, 1977 recording the finding that Rengammal, defendant No.1 in the suit
was wife of Alagarsami Reddiar who was alive at the 2 time of filing the suit.
There had been no legal separation between them. Therefore, the question of
live-in-relationship of Smt. Rengammal with Muthu Reddiar could not arise.
aggrieved, the defendants therein filed the First Appeal. The respondent No. 1
herein, Vijaya Renganathan, purchased the suit property in 1978 i.e. during the
pendency of the First Appeal for a sum of about Rs. 10,000/- and got himself
impleaded in the appeal as a party. The First Appeal was dismissed by the
Appellate Court vide judgment and decree dated 17th September, 1986. The said
purchaser, respondent No.1, alone filed the Second Appeal under Section 100 of
Code of Civil Procedure, 1908 (hereinafter called as `CPC') before the High
Court which has been allowed. Hence, this appeal.
Learned counsel for the appellants has submitted that Smt. Rengammal, original
defendant No.1 was legally wedded wife of Alagarsami and he was still alive.
Therefore, the question of presumption of marriage for having live-in- 3
relationship with Muthu Reddiar could not arise. In such eventuality, Muthu
Reddiar could be liable for offence of Adultery under Section 497 of Indian Penal Code,
1860 (hereinafter called as `IPC'). More so, even if
live-in-relationship is admitted and it is further admitted that the two
children were born due to that live-in-relationship, the said children could
not inherit the coparcenery property and in absence of any finding recorded by
any Court below that the suit land was self-acquired property of Muthu Reddiar,
the judgment of the High Court is liable to be set aside. At the most, the
respondent No. 1 herein can claim recovery of the sale consideration from his
vendors as the possession is still with the present appellants.
5. On the
contrary, learned counsel for the respondent No.1 has vehemently opposed the
submission of the learned counsel for the appellants, contending that the High
Court after re-appreciating the evidence on record came to the conclusion that
the factum of marriage of Smt. Rengammal with Alagarsami Reddiar could not be
proved by the appellants 4 herein and because of their live-in-relationship, a
presumption of marriage between Muthu Reddiar and Smt. Rengammal could be drawn
and, therefore, in view of the provisions of Section 16 of the Hindu Marriage
Act, 1955 (hereinafter called as, "the Act"), the two children born
out of that live-in- relationship were entitled to inherit the property of
Muthu Reddiar and thus, the appeal is liable to be dismissed.
have considered the rival submissions of the learned counsel for the parties
and perused the record.
Trial Court as well as the First Appellate Court have recorded a categorical
finding of fact that Smt. Rengammal, defendant No.1 had been married to
Alagarsami Reddiar who was alive on the date of institution of the suit and,
therefore, the question of marriage by presumption between Smt.
and Muthu Reddiar would not arise and for determining the same all the material
on record had been taken into consideration including the statement of 5
Seethammal, DW1 along with all other defence witnesses and the documents,
particularly, Exts.B14, B18, B19 and B2.
However, the High Court framed two substantial questions of law, namely:
Whether on the admitted long cohabitation of the First defendant and Muthu
Reddiar, a legal presumption of a lawful wedlock is not established;
Whether the specific case of prior and subsisting marriage between defendant
and Alagarsami Reddiar set up by Plaintiff is established as required by law
and she could have a preferential claim over defendants 1 to 3?
determining the substantial question (b) the High Court only considered the
statement of Seethammal, DW1, the step mother of Muthu Reddiar and did not take
into consideration the evidence of plaintiff's witnesses which had been relied
upon by the courts below, particularly, 6 Kumarasamy PW2 and Kandasamy PW5 and
re-appreciated the documentary evidence. Therefore, the question does arise as
to whether such a course is permissible while deciding the Second Appeal under
Section 100 CPC.
Court held that question of re-appreciation of evidence and framing the
substantial question as to whether the findings relating to factual matrix by
the court below could vitiate due to irrelevant consideration and not under
law, being question of fact cannot be framed.
& Ors. AIR 2000 SC 2108, this Court held that it is not permissible for the
High Court to decide the Second Appeal by re-appreciating the evidence as if it
was deciding the First Appeal unless it comes to the conclusion that the
findings recorded by the court below were perverse.
L.Rs. AIR 2001 SC 1273, this Court held that the question whether Lower Court's
finding is perverse may come within the ambit of substantial question of law.
However, there must be a clear finding in the judgment of the High Court as to
perversity in order to show compliance with provisions of Section 100 CPC. Thus,
this Court rejected the proposition that scrutiny of evidence is totally
prohibited in Second Appeal.
it is evident that High Court can interfere with the finding of fact while
deciding the Second Appeal provided the findings recorded by the Courts below
H.B. Gandhi, Excise & Taxation Officer-cum- Sons & Ors. 1992 Supp.(2)
SCC 312, this Court held that if a finding of fact is arrived at by ignoring or
excluding relevant material or by taking into consideration irrelevant material
or if the finding so outrageously defies logic as to suffer from the 8 vice of
irrationality incurring the blame of being perverse, then the finding is
rendered infirm in law. In M/s. Triveni Rubber SC 1341, this Court held that
the order suffers from perversity in case some relevant evidence has not been
considered or that certain inadmissible material has been taken into
consideration or where it can be said that the findings of the authorities are
based on no evidence or that they are so perverse that no reasonable person
would have arrived at & Ors. (1999) 2 SCC 10, this Court held that if a
decision is arrived at on no evidence or evidence which is thoroughly
unreliable and no reasonable person would act upon it, the order would be
perverse. But if there is some evidence on record which is acceptable and which
cannot be relied upon, howsoever compendious it may be, the conclusions would
not be treated as perverse and the findings would not be interfered Prasad
(dead) thr. Lrs. & Ors. AIR 2001 SC 386, it has been held that order of an
authority is perverse in the sense that 9 the order is not supported by the
evidence brought on record or it is against the law or it suffers from the vice
of procedural Administration, thr. Secretary (Labour) & Ors. AIR 1984 SC
1805, this Court while dealing with a case of disciplinary proceedings against
an employee considered the issue and held as under:
It is equally well-settled that where a quasi- judicial tribunal or arbitrator
records findings based on no legal evidence and the findings are either his
ipse dixit or based on conjectures and surmises, the enquiry suffers from the
additional infirmity of non-application of mind and stands vitiated. ....The
High Court, in our opinion, was clearly in error in declining to examine the
contention that the findings were perverse on the short, specious and wholly
untenable ground that the matter depends on appraisal of evidence."
the instant case, the Courts below had appreciated the entire evidence and came
to the conclusion that Smt. Rengammal, defendant no.1 was legally wedded wife
of Alagarsami Reddiar and thus did not presume her marriage with Muthu Reddiar.
The High Court without making any 10 reference to the evidence of the
plaintiff's witnesses, particularly, Kumarasamy-P.W.2 and Kandasamy-PW.5
reversed the finding of fact and reached the conclusion that merely
live-in-relationship between the said two parties would lead the presumption of
marriage between them. The High Court erred in not appreciating that the
judgments of the Courts below could be based on another presumption provided
under Section 112 of the Evidence Act, 1872 (hereinafter called as the
Section 112 of the Evidence Act provides for a presumption of a child being
legitimate and such a presumption can only be displaced by a strong
preponderance of evidence and not merely by a balance of probabilities as the
law has to live in favour of innocent child from being bastardised. In the
instant case, as the proof of non-access between Rengammal and Alagarsami had
never been pleaded what to talk of proving the same, the matter has not been
examined by the High Court in correct perspective. It is settled legal
proposition that proof of non-access between the 11 parties to marriage during
the relevant period is the only way Muhammad Ibrahim Khan & Ors. AIR 1929
Nanavati AIR 1965 SC 364; Perumal Nadar (Dead) Teeku Dutta (Mrs.) and Anr.
(2005) 4 SCC 449]
High Court has decided the issue regarding the factum of marriage between
Alagarsami and Rengammal only placing reliance upon the statement of Smt.
Seethammal, DW1, step mother of Muthu Reddiar who had been disbelieved by the
Courts below by giving cogent reasons and taking note of the fact that she had
arranged their marriage spending a sum of Rs.10 only. The High Court has also
reappreciated the documentary evidence and took a view contrary to the view 12
taken by the court's below. It was not appropriate for the High Court to
re-appreciate the evidence in Second Appeal as no substantial question of law
involved therein. Both the Courts below found that Rengammal was legally wedded
wife of Alagarsami. The Courts below had placed very heavy reliance upon the
witnesses examined by the appellant/plaintiff particularly, Kumarasamy- PW 2
and Kandasamy- PW 5.
view of the fact that the High Court did not even take note of the deposition
of the plaintiff's witnesses, findings recorded by the High Court itself become
perverse and thus liable to be set aside.
that as it may, Section 5(1) of the Act lays down conditions for a Hindu
marriage. It provides that marriage may be solemnized between any two Hindus if
neither of them is a spouse living at the time of marriage. Section 11 provides
that any marriage which is in contravention of Section 5(1) of the Act, would
be void. Section 16 of the Act stood amended 13 vide Amendment Act of 1976 and
the amended provisions read as under:- "Legitimacy of children of void and
voidable marriages - (1) Notwithstanding that a marriage is null and void under
section 11, any child of such marriage who would have been legitimate if the
marriage had been valid, shall be legitimate........
a decree of nullity is granted in respect of a voidable marriage under section
12, any child begotten or conceived before the decree is made, who would have
been the legitimate child of the parties to the marriage if at the date of the
decree it had been dissolved instead of being annulled, shall be deemed to be
their legitimate child notwithstanding the decree of nullity.
Nothing contained in sub-section (1) or sub- section (2) shall be construed as
conferring upon any child of a marriage which is null and void or which is
annulled by a decree of nullity under section 12, any rights in or to the
property of any person, other than the parents, in any case where, but for the
passing of this Act, such child would have been incapable of possessing or
acquiring any such rights by reason of his not being the legitimate child of
his parents." (Emphasis added)
it is evident that Section 16 of the Act intends to bring about social reforms,
conferment of social status of legitimacy on a group of children, otherwise treated
as illegitimate, as its prime object.
Padayachi & Ors. AIR 1992 SC 756, this Court held that if man and woman are
living under the same roof and cohabiting for a number of years, there will be
a presumption under Section 114 of the Evidence Act that they live as husband
and wife and the children born to them will not be illegitimate.
Court, placing reliance upon its earlier decision in that live-in-relationship
is permissible only in unmarried major persons of heterogeneous sex. In case,
one of the said persons is married, man may be guilty of offence of adultery
and it would amount to an offence under Section 497 IPC.
1996 SC 1963, this Court held that Section 16 of the Act is not ultra vires of
the Constitution of India. In view of the legal fiction contained in Section
16, the illegitimate 15 children, for all practical purposes, including
succession to the properties of their parents, have to be treated as
cannot, however, succeed to the properties of any other relation on the basis
of this rule, which in its operation, is limited to the properties of the
this Court dealt with a case wherein after the death of a Government employee,
children born illegitimately by the woman, who had been living with the said
employee, claimed the share in pension/gratuity and other death-cum-retiral
benefits along with children born out of a legal wedlock. This Court held that
under Section 16 of the Act, children of void marriage are legitimate. As the employee,
a Hindu, died intestate, the children of the deceased employee born out of void
marriage were entitled to share in the family pension, death-cum-retiral
benefits and gratuity.
(2003) 1 SCC 730, this Court held that while engrafting a 16 rule of fiction in
Section 16 of the Act, the illegitimate children have become entitled to get
share only in self-acquired properties of their parents. The Court held as
under :- "4...........Under the ordinary law, a child for being treated as
legitimate must be born in lawful wedlock. If the marriage itself is void on
account of contravention of the statutory prescriptions, any child born of such
marriage would have the effect, per se, or on being so declared or annulled, as
the case may be, of bastardising the children born of the parties to such
marriage. Polygamy, which was permissible and widely prevalent among the Hindus
in the past and considered to have evil effects on society, came to be put an
end to by the mandate of the Parliament in enacting the Hindu Marriage Act,
1955. The legitimate status of the children which
depended very much upon the marriage between their parents being valid or void,
thus turned on the act of parents over which the innocent child had no hold or
control. But for no fault of it, the innocent baby had to suffer a permanent
set back in life and in the eyes of society by being treated as illegitimate. A
laudable and noble act of the legislature indeed in enacting Section 16 to put
an end to a great social evil.
same time, Section 16 of the Act, while engrafting a rule of fiction in
ordaining the children, though illegitimate, to be treated as legitimate,
notwithstanding that the marriage was void or voidable chose also to confine
its application, so far as succession or 17 inheritance by such children are
concerned to the properties of the parents only.
5. So far
as Section 16 of the Act is concerned, though it was enacted to legitimise
children, who would otherwise suffer by becoming illegitimate, at the same time
it expressly provide in Sub-section (3) by engrafting a provision with a
non-obstante clause stipulating specifically that nothing contained in
Sub-section (1) or Sub-section (2) shall be construed as conferring upon any
child of a marriage, which is null and void or which is annulled by a decree of
nullity under Section 12, `any rights in or to the property of any person,
other than the parents, in any case where, but for the passing of this Act,
such child would have been incapable of possessing or acquiring any such rights
by reason of this not being the legitimate child of his parents'. In the light
of such an express mandate of the legislature itself there is no room for
according upon such children who but for Section 16 would have been branded as
illegitimate any further rights than envisaged therein by resorting to any
presumptive or inferential process of reasoning, having recourse to the mere
object or purpose of enacting Section 16 of the Act.
attempt to do so would amount to doing not only violence to the provision
specifically engrafted in Sub-section (3) of Section 16 of the Act but also
would attempt to court relegislating on the subject under the guise of
interpretation, against even the will expressed in the enactment itself.
Consequently, we are unable to countenance the submissions on behalf of the
view has been approved and followed by this Court 9 SCC 612.
it is evident that in such a fact-situation, a child born of void or voidable
marriage is not entitled to claim inheritance in ancestral coparcenery property
but is entitled only to claim share in self acquired properties, if any.
the instant case, respondents had not pleaded at any stage that the Suit land
was a self acquired property of Muthu Reddiar. It is evident from the record
that Muthu Reddiar did not partition his joint family properties and died
issueless and intestate in 1974. Therefore, the question of inheritance of
coparcenery property by the illegitimate children, who were born out of the
live-in-relationship, could not arise. Thus, the judgment of the High Court is
liable to be set aside only on this sole ground.
19 29. In
view of the above, the appeal succeeds and is allowed.
judgment and order of the High Court dated 10th July, 2001 is hereby set aside.
No order as to cost.
However, it shall be open to R.5 to resort to legal proceedings, permissible in
law for recovery of the sale consideration from his vendors as he has purchased
the property in lis pendis and the appellants are still in possession of the
.........................................J. (Dr. B.S. CHAUHAN)
.........................................J. (SWATANTER KUMAR)
May 17, 2010
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
HON'BLE DR. JUSTICE B.S. CHAUHAN ON 25.5.2010 (TUESDAY) 21 IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 7108 of 2003 Bharatha
Matha & Anr. .......Appellants Versus R. Vijaya Renganathan & Ors.
.........Respondents Dear brother A draft judgment in the above mentioned
matter is being sent herewith for your kind perusal and favourable