Heard learned counsel for the parties.
The Trial Court decreed the suit for declaration of title and recovery of
possession filed by the plaintiff-appellants after recording a categorical finding that
Mohandas had not married Nankibai (respondent herein) and as such she cannot
have any right in the joint property. The Lower Appellate Court agreed with the
aforesaid conclusions of the Trial Court and dismissed the appeal preferred by
Nankibai. However, the High Court allowed the Second Appeal and set aside the
judgments and decrees of the two courts by observing that they lost the sight of the
fact that Nankibai was living with Mohandas and this was sufficient to show that she
was married to him.
We have been taken through the judgments of the Courts below and the
High Court. In our view, the finding of fact recorded by the Trial Court, which was
confirmed by the Lower Appellate Court that marriage of Nankibai with Mohandas
has not been proved, was based on a correct appreciation of the evidence produced
by the parties and the High Court was
not justified in upsetting the said finding in Second Appeal without even coming to
the conclusion that the concurrent finding of fact recorded by the courts below was
perverse. We are further of the view that High Court’s finding on the issue of
marriage of Nankibai with Mohandas is based on surmises. The mere fact that
Nankibai was living with Mohandas, cannot, by any stretch of imagination, lead to a
conclusion that they were married.
Accordingly, the appeal is allowed, impugned order rendered by the High
Court is set aside and the same passed by the Lower Appellate Court is restored.
No costs.
[G.S. SINGHVI] New Delhi, March 18, 2009.