BHARATHA MATHA & ANR. versus R. VIJAYA RENGANATHAN & ORS.

Citation: [2010] 7 S.C.R. 154 · Decided: 17-05-2010 · Supreme Court of India · Bench: B.S. CHAUHAN · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2010] 7 S.C.R. 154 
BHARATHA MATHA & ANR. 
v. 
R. VIJAYA RENGANATHAN & ORS. 
(Civil Appeal No. 7108 of 2003) 
MAY 17, 2010 
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.] 
Code of Civil Procedure, 1908 
c 
s. 100 - Second appeal - Scope of - High Court setting 
aside the concurrent finding of fact recorded by both the courts 
below that in view of the fact that husband of the defendant 
was alive at the relevant time, marriage between her and the 
brother of plaintiff could not be presumed - HELD: High Court 
0 re-appreciated the documentary evidence, and did not take 
into consideration the evidence of plaintiff's witnesses which 
had been relied upon by courts below, but decided on the 
presumption of marriage only placing reliance on the 
evidence of DW-1 who had been disbelieved by the courts 
E be!low for cogent reasons - Such a course is not permissible 
while deciding a second appeal u/s100 - Judgment of High 
Court set aside. 
Hindu Marriage Act, 1955: 
F 
s.5 - Marriage - Presumption of - HELD: If one of the 
parties of live-in relationship has a spouse living, merely live-
in relationship between the said two parties would not lead to 
presumption of marriage between them. 
s. 16(2) - Legitimacy of children of void or voidable 
G marriages - HELD: In view of legal fiction contained in s.16, 
the illegitimate children for all practical purposes, including 
succession to properties of their parents, have to be treated 
as legitimate - But, they cannot succeed to the properties of 
any other relation. 
H 
154 
BHARATHA MATHA & ANR. v. R. VIJAYA 
RENGANATHAN & ORS. 
Evidence Act, 1872: 
155 
s. 112 - Birth during marriage, conclusive proof of 
legitimacy - Presumption of a child being legitimate can only 
A 
be displaced by a strong preponderance of evidence and not 
merely by a balance of probabilities - Proof of non-access 
between the parties to marriage during the relevant period is 
8 
the only way to rebut the presumption - In the instant case, 
the proof of non-access between the parties to the legally 
subsisting marriage had never been even pleaded - Hindu 
Marriage Act, 1985 - ss. 5 and 16. 
Transfer of Property Act, 1882: 
s.52 - Transfer /is pendens - HELD: Owners still being 
c 
in possession of suit property and their suit for declaration of 
title having been decreed, purchaser may resort to legal 0 
proceedings for recovery of sale consideration from his 
vendors - Hindu Marriage Act, 1955 - ss. 5 and 16 - Cod of 
Civil Procedure, 1908 - s. 100. 
The predecessor-in-interest of the appellants filed a 
suit against respondent nos. 2 to 5, claiming her share 
E 
in the suit property left by her brother namely, 'MR', who 
died intestate and was stated to be unmarried. It was 
stated that defendant-1 (respondent no.2) was married to 
one 'AR' who was alive on the date of institution of the 
suit and her claim of live-in relationship with 'MR' and 
F 
having two children from him was to be rejected. 
Defendant no. 1 denied her marriage with 'AR'. The trial 
court decreed the suit. Respondent no. 1, having 
purchased the suit property pending first appeal, got 
himself impleaded as a party in the appeal. The first G 
appellate court affirmed the decree. However, the High 
Court allowed the second appeal filed by the 
respondents. Aggrieved, the successors of the plaintiff 
filed the appeal. 
H 
I 56 
SUPREME COURT REPORTS 
[2010] 7 S.C.R. 
A 
Allowing the appeal, the Court 
HELD: 1.1. The High Court, while deciding a second 
appeal, can interfere with the finding of fact, provided the 
findings recorded by the courts below are perverse. In 
8 the instant case, the trial court as well as the first appellate 
court have recorded a categorical finding of fact that 
defendant No.1 was legally wedded wife of 'AR" who was 
alive on the date of institution of the suit and, therefore, 
the question of marriage by presumption between 
defendant no. 1 and 'MR' (brother of the plaintiff) would 
C not arise; and for determining the same all the material 
on record, including the statement of DW1 along wi•h all 
other defence witnesses and the documents, particularly, 
Exts.814, 818, 819 and 82, was taken into consideration. 
The courts below placed very heavy reliance upon the 
D witnesses examined by the plaintiff particularly, PWs 2 
and 5. The High Court without making any reference to 
the evidence of the plaintiff's witnesses, particularly, 
P.Ws .2 and 5, reversed the finding of fact and reached 
the con

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