Judgment : Parties herein will be referred according to their ranks in O.S.No.1647 of 1993 on the file of City Civil Court, Madras. O.S.No.1647 of 1993 and O.S.2074 of 1993 are two suits filed by respective plaintiffs herein claiming themselves as legally wedded wife and children of late Palanisamy. 2. P.Kamakshi who is first plaintiff in O.S.No.1674 of 1993 filed the suit for declaration that she along with her children who are plaintiffs 2 to 4 are the only legal heirs of Palanisamy who died as Master craftsman in Southern Railway at Perambur and who died in a railway accident on 9. 1992. According to her, her marriage with Palanisamy was performed according to Hindu rites on 11. 1962 at Varadammal Thottam, Berracha Road, Kilpauk Gardens, Madras and subsequent to her marriage, herself and Palanisamy were residing at Door No.2, Ujjaini Street, Ayanavaram, Madras for about 33 years. Thereafter, plaintiffs are residing at the present address i.e., at No.21, Somasundara Devar 5th Street, Ayanavaram, Madras. It is their case that first plaintiff stood as surety for the loans received by Palanisamy and after his death, creditors also issued notice asking first plaintiff to close the transactions. The railways who is the employer of late Palanisamy also intimated first plaintiff that a claim is also made by one Devaki claim in herself as legally wedded wife of Palanisamy and employer wanted a certificate from Civil Court entitling her to receive the monetary benefits due to deceased Palanisamy. It is also stated that in view of the premature death of her husband, her son Ruthrakumar, who is second plaintiff also received financial assistance from second defendant. It is further averred that even if late Palanisamy had any connection with first defendant, she cannot claim her status as wife of deceased especially when first marriage was subsisting. The suit was therefore laid to get a declaration that she and other plaintiffs born to her in Palanisamy alone are entitled to the monetary benefits due to deceased Palanisamy. 3. In the written statement filed by first defendant i.e., Devaki, she alleged that she was married to Palanisamy, according to Hindu Rites, on 16. 1981 at Sri Arulmighu Agastheeswaram Alayam in the presence of elderly members and relatives of both families and in that marriage she has given birth to four children. 3. In the written statement filed by first defendant i.e., Devaki, she alleged that she was married to Palanisamy, according to Hindu Rites, on 16. 1981 at Sri Arulmighu Agastheeswaram Alayam in the presence of elderly members and relatives of both families and in that marriage she has given birth to four children. According to her, first plaintiff cannot claim as legally wedded wife of deceased Palanisamy and except herself and her four children. Nobody is entitled to inherit the estate of deceased. 4. Devaki along with her children, filed O.S.No.2074 of 1993 claiming themselves as legal heirs of deceased Palanisamy. In that suit, name of first defendant is stated as ‘Kamakshi alias Kala Jacob’. 5. In the written statement filed in that suit, first defendant denied that her name is not Kala Jacob and she is known only as Kamakshi. She also reiterated her contentions as stated in the suit O.S.No.1647 of 1993. 6. Both these suits were jointly tried and evidence was taken in O.S.No.1647 of 1993. 7. During trial Kamakshi got examined herself as P.W.1 and plaintiffs 2 and 3 in O.S.No.1647 of 1993 got themselves examined as P.Ws.2 and 3. Documentary evidence on the side of plaintiff consist of Exs.A-1 to A-22. On the side of defendants Devaki was examined as D.W.1 and three other witnesses were examined as D.Ws.2 to 4. Documentary evidence on the side of defendants consist of Exs.B-1 to B-14. 8. After evaluating entire evidence trial court as per judgment dated 26. 1996 held that first plaintiff is legally wedded wife of Palanisamy and plaintiffs 2 to 4 are born to her in Palanisamy. Declaration as sought for was granted. It further held that Devaki is not legally wedded wife and suit filed by her was dismissed. 9. Aggrieved by the said judgment, Devaki and her children filed A.S.No.128 of 1996 against the decree and judgment in O.S.No.2074 of 1993 and against the decree and judgment in O.S.No.1047 of 1993, she filed A.S.No.129 of 1996. By common judgment dated 27. 1997 lower appellate court held that Kamakshi has not proved her marriage and therefore suit filed by her was dismissed. O.S.No.2074 of 1993 filed by Devaki and her children was decreed. It is against the said common judgment, these two second appeals are preferred. 10. By common judgment dated 27. 1997 lower appellate court held that Kamakshi has not proved her marriage and therefore suit filed by her was dismissed. O.S.No.2074 of 1993 filed by Devaki and her children was decreed. It is against the said common judgment, these two second appeals are preferred. 10. Following substantial questions of law have been raised in the memorandum of appeals: .• (1) Whether the lower appellate court is wrong in holding that the appellant is not a legally wedded wife of late Palanisamy. .• (2) Whether the lower appellate court is wrong in holding that the children of appellant are illegitimate children. 11. Learned Judge ordered notice of motion and respondents have also entered appearance. I heard both side counsel. According to me both the questions of law could be considered together. 12. Trial court in its judgment held that Palanisamy married Kamakshi on 11. 1962 and Plaintiffs 2 to 4 are her children born in the marriage. Evidence of P.W.1 was believed. When the matter was taken in appeal. lower appellate court in the last sentence of para.8 of its judgment held thus: “…In this case, though the documents filed by the respondent would prove to an extent that the deceased Palaniswamy and the respondent were living as husband and wife for some time and they be gotten respondents 2 to 4 as their children. lower appellate court in the last sentence of para.8 of its judgment held thus: “…In this case, though the documents filed by the respondent would prove to an extent that the deceased Palaniswamy and the respondent were living as husband and wife for some time and they be gotten respondents 2 to 4 as their children. But they will not in any way prove the factum of marriage between them.” Last sentence in para.9 of the judgment also relevant, which reads thus: “…By mere mentioning in school records and passport that Palanisamy as father of children and husband of 1st respondent would not in any way prove that there was a legal marriage between 1st respondent and Palanisamy and the children were begotten out of the valid marriage.” In the last sentence in para.10 also it is further held thus: “…Apart from these facts, the conduct of P.W.1 elucidated from her own evidence not participating in the ceremonies that have taken place after the death of Palanisamy which is considered to be important one as far as Hindus are concerned, would fortify the fact that there could not have been a valid marriage between herself and Palanisamy and that is why she has not performed those ceremonies.” Learned Appellate Judge also held while discussing the evidence in para.8 of the judgment thus: “…It is true that in all these documents Palanisamy is shown to be the father of respondents 2 to 4 and were enjoying employment benefits as sons of Palanisamy. But they do not in any way to prove the marriage between the deceased and the 1st respondent. Living together for along period as husband and wife could draw a presumption of factum of marriage in the absence of any rival claim, but in this case, when there is a rival claim we have to see whether there is any valid marriage between the parties so as to claim status of wife. …” It was thereafter learned Judge held that though Palanisamy and plaintiff were cohabiting as husband and wife that may not prove the marriage. Why I am extracting the judgment of lower appellate court is that from the finding it is clear that first plaintiff and late Palanisamy were residing together and plaintiffs 2 to 4 are also found to be their children. Why I am extracting the judgment of lower appellate court is that from the finding it is clear that first plaintiff and late Palanisamy were residing together and plaintiffs 2 to 4 are also found to be their children. Second plaintiff on the date of plaint was 29 years old; 3rd plaintiff 22 years and 4th plaintiff was 21 years of age and plaintiffs 2 and 3 were examined in this case as P.Ws.2 and 3. 13. Whether lower appellate court was correct in approaching the question in the way it has done is to be considered in this appeals. 14. In para.7 of the plaint in O.S.No.1647 of 1993 it is asserted that on 11. 1962 a marriage was performed according to Hindu Marriage Rites and after marriage, both of them were residing at door No.2, Ujjaini Street, Ayanavaram, Madras for the last 33 years. It is also alleged that plaintiffs 2 to 4 are sons of late Palanisamy through first plaintiff. In the written statement in para.5 it is only stated that they denied the averments in para.7 of the plaint that marriage between Palanisamy and first plaintiff took place on 11. 1962 and they also denied that they lived together for 33 years. They do not deny the fact that plaintiffs 2 to 4 are not children of Palanisamy. The address in which they were residing together as mentioned in para.7 of the plaint is also not denied in the written statement. 15. P.W.1 has statedthat their marriage took place on 11. 1962 and photo was also taken. Ex.A-5 is the photo taken at the time of marriage. The identity of the person is not disputed any where in the evidence. Regarding Ex.A-5 lower appellate court has stated thus in para.8 of the judgment thus: “…Ex.A-5 is the photograph in which deceased Palanisamy and first respondents are present in a marriage function….” From the said sentence it is clear that lower appellate court has not considered the evidence in correct perspective. Ex.A-5 pertains to their marriage and not that they attended some other marriage function. Regarding Ex.A-5 which is proved through P.W.1. there is no cross examination at all. Ex.A-6 is passport in favour of first plaintiff, wherein she described herself as wife of Palanisamy. Ex.A-5 pertains to their marriage and not that they attended some other marriage function. Regarding Ex.A-5 which is proved through P.W.1. there is no cross examination at all. Ex.A-6 is passport in favour of first plaintiff, wherein she described herself as wife of Palanisamy. Ex.A-7 is disembarcation card wherein also first plaintiff claims herself as wife of Palanisamy and during the relevant time they were residing in Madras in the address mentioned in para.7 of the plaint. Various other documents produced in this case also show that community at large recognised plaintiffs as wife and children of deceased Palanisamy. Ex.A-15 is a marriage invitation card after the death of Palanisamy. Invitation card is printed in the name of his uncle where he describes himself as son of Palanisamy. Exs.A-16 and A-17 are two letters written by uncle to second plaintiff calling himself as son. Ex.A-18 is the concession given to Palanisamy and first plaintiff for railway travel. Even during the lifetime of Palanisamy as per Ex.A-10. plaintiffs were getting medical benefits from Southern Railway, a concession given to railway employee. They got concession only because second plaintiff was also recognised as son of deceased Palanisamy. Ex.A-22 shows that third plaintiff ways admitted as inpatient in the Railway Hospital being the son of late Palanisamy. Ex.A-3 which is dated 30.10.1992 a few days after the death of Palanisamy a notice sent by Co-operative Society from which late Palanisamy obtained loan. First plaintiff stood as surety for the loan and society issued notice asking her to settle the transaction. From these documents it is clear that first plaintiff is wife and plaintiffs 2 to 4 are their children. It also shows that Palanisamy and first plaintiff were residing together as husband and wife and members of community also recognised them as such. 16. Regarding Exs.A-1 to A-5 marked through first plaintiff, there is no cross examination. It is true that Ex.A-1 is only death certificate of Palanisamy. While examining in chief, she said that she was residing at Ujjaini Street and she also said that from the employer they received financial assistance to the extent of Rs.7,000 and the document is marked as Ex.A-2. She also said that she has taken treatment in the Railway Hospital evidenced by Ex.A-4 and the photo is Ex.A-5. During her cross-examination she said that marriage ceremonies were performed according to Hindu marriage rites. She also said that she has taken treatment in the Railway Hospital evidenced by Ex.A-4 and the photo is Ex.A-5. During her cross-examination she said that marriage ceremonies were performed according to Hindu marriage rites. The lower court has taken exception to this statement forgetting for the moment that even in the plaint filed by Devaki. she only said that her marriage that Palanisamy is also according to Hindu rites. In fact on going by the cross-examination she was not asked about the ceremonies that is performed. In cross-examination names of her sisters and brothers were asked and she said that for all of them marriage is performed according to Hindu rites, and she further said: Whether this is sufficient to prove a marriage. According to me the said statement is sufficient. 17. A similar question came for consideration before the Kerala High Court which is reported in Sreekumar v. Prema, I.L.R. Sreekumar v. Prema, I.L.R. Sreekumar v. Prema, I.L.R. (1976)1 Ker. 644. In that case parties are governed by Madras Marumkkathaya Act. The Act provides customary rights to be performed for the marriage. Witness while in box did not say what are the ceremonies performed in the marriage. The witness only said that marriage was performed according to Madras Marukakkathayam Custom. The Division bench of Kerala High court held thus: “The requirement of the law would be satisfied by a statement that the marriage was performed in accordance with the Marumakkathayam Custom especially when, as in this case, the said statement has not been effectively challenged. …” Similar is the case before us, No question was put to her as to what are the customs of marriage and what are the ceremonies to be performed. 18. Appellate court also found fault with plaintiff in not examining the neighbours or relatives to prove the marriage. Suit is filed in 1993 and marriage took place about 30 years before i.e., in the year 1962. Along with Ex.A-5, statement of P.W.1 that her marriage took place according to Hindu Custom proves the marriage. The birth of three children who are now aged 26 years. 22 years and 21 years also show that they were cohabiting as man and wife. Lower court also held that first plaintiff and deceased Palanisamy were living as husband and wife and plaintiffs 2 to 4 are their children. The birth of three children who are now aged 26 years. 22 years and 21 years also show that they were cohabiting as man and wife. Lower court also held that first plaintiff and deceased Palanisamy were living as husband and wife and plaintiffs 2 to 4 are their children. I have already shown the relations and society also recognises them as man and wife. In that case, as was held in Badri Prasad v. Deputy Director of Consolidation , (1978)3 S.C.C. 527 a valid marriage has to be presumed. In a short judgment, their Lordships held thus: “… A strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frown upon bastard. In this view, the contention of Shri Garg. for the petitioner, that long after the alleged marriage, evidence has not been produced to sustain its ceremonial processes by examining the priest or other witnesses, deserves no consideration. If men and women who live as husband and wife in society are compelled to prove, half a century later, by eye witness evidence that they were validly married, few will succeed. The contention deserves to be negatived and we do so without hesitation….” 19. Lower appellate court also found fault with the appellant that there would not have been any valid marriage and that is why she has not performed ceremonies. This statement of lower appellate court is patently incorrect when P.W.1 has said that marriage has been performed according to Hindu rites. .20. In Veerappa v. Michael , A.I.R. 1963 S.C. 933 the question that came for consideration was whether the marriage is in Asura Form in Brumma form. Asura form of marriage is not an approved form whereas Brumma form is approved form. In that case their Lordships in para.50 held thus: .“…In this state of evidence the presumption in Hindu Law that the marriage was performed in Brahma form must be invoked. As we have pointed out under the Hindu Law whether a marriage was a Brahma form or Asura Form, the court will presume even where the parties are Shudras that it was in the Brahma form. As we have pointed out under the Hindu Law whether a marriage was a Brahma form or Asura Form, the court will presume even where the parties are Shudras that it was in the Brahma form. Further where it is proved that the marriage was performed in fact the court will also presume that the necessary ceremonies have been performed. …” [Italics supplied] .21. A Division Bench of our High Court in the decision reported in Rajagopal Pillai v. Pakkiam Ammal , (1968)2 MLJ. 411 held thus: .“The marriage state being the chief foundation on which the superstructure of society rests, presumption of the marriage arising from cohabitation of spouses is a very strong presumption. Where a man and a woman had lived together as man and wife, the law will presume, until the contrary is proved that they were living together by virtue of a legal marriage and not in concubinage. The presumption of law is the strongest of legal presumption and is not lightly to be repelled by a mere balance of probabilities and the evidence repelling that presumption must be strong, distinct and satisfactory. Every intendment is made in favour of a marriage de facto and the more distant, the date of the marriage, the more readily is the presumption gets strengthened when it is proved that the party whose marriage is in question distinctly intended to marry and through a form of marriage with that intention and laos subsequently lived together as man and wife and were esteemed and reputed as such by those who knew them. The presumption still exists, even when there is no positive evidence of any marriage having taken place. The presumption is not only with regard to the factum of marriage, but also with regard to the performance of the requisite ceremonies to constitute a valid marriage.” [Italics supplied] .22. Justice Rathinam (as his Lordship then was) referred the above Judgment in the decision reported in Alagammai v. Rakkammal , (1983)1 MLJ. 311 wherein it is held thus: .“It is true that law does not favour concubinage, but that the presumption is in favour of a marriage when a man and a woman are known to have cohabited continuously for a long number of years, though such a presumption is a rebuttal one. …” .23. In Linga v. Ajodhya , A.I.R. 1974 Ori. …” .23. In Linga v. Ajodhya , A.I.R. 1974 Ori. 107 in para.5 of the judgment it is held thus: .“It is well-established that where a marriage in fact has been performed, it will be presumed that necessary ceremonies have also been duly performed and it is incumbent on him who challenges the legality of the marriage to rebut the presumption and to establish by evidence that the form of marriage is invalid in some respect or the other. It is not necessary that the witnesses to the marriage should prove all the details which taken together constitute a valid marriage under the Hindu law. This position of Law has been established since a very long time and th Privy Council in Mouji Lal v. Chandrabati Kumari , (1911) I.L.R. 38 Cal. 700 (P.C.) has held that where a ceremony of marriage undoubtedly took place the strong presumption in favour of the marriage applies to the forms and the ceremonies necessary to constitute it a valid marriage.” .24. In an earlier decision of Nagpur High Court reported in Shankarrao v. Sadu Ganaji , A.I.R. 1951 Nag. 400 in para.6 of the judgment it is held thus: .“…In my opinion, it is not necessary for a party to plead specifically that a Hindu marriage was in an approved form. It must be presumed that every such marriage is in an approved form and it is only when party wants to allege that a particular marriage was not in an approved form that the must plead specifically to that effect. …” 25. Taking into consideration the evidence and also the law, it has to be held that first plaintiff is the legally wedded wife of late Palanisamy and plaintiffs 2 to 4 are their children. 26. Now I come to the various reasons stated by lower appellate court to hold otherwise. 27. I have already referred to Exs.A-6 and A-7. Ex.A-7 is only a disembarcation card. Ex.A-6 is passport, In the photo attached to the passport, Thali is not seen. A question was put to her why Thali is not seen in the photo. She answered that she has hidden the Thali in her Jacket. Lower appellate court held that hiding of Thali raise a genuine doubt whether the marriage was solemnized as per Hindu Rites and Customs. I could not find any justification for such conclusion. A question was put to her why Thali is not seen in the photo. She answered that she has hidden the Thali in her Jacket. Lower appellate court held that hiding of Thali raise a genuine doubt whether the marriage was solemnized as per Hindu Rites and Customs. I could not find any justification for such conclusion. Thali is a sacred thread which is not to be exhibited to be seen by everyone and when P.W.1 says that she has hidden the Thali in her Jacket. there is nothing to suspect that explanation. .28. Lower appellate court also held that plaintiff did not participate in the obsequies of deceased Palanisamy. When such finding is entered lower appellate court is also bound to consider the explanation of P.W.1. P.W.1 has said that her husband was having connection with other woman and at the time when he died, the same was never informed to her. She came to know about the death only three days after. If she knew about the death only long after the death, she could not be found fault for not attending the obsequies of deceased Palanisamy. This was also omitted to be considered by lower appellate court. 29. The other reasoning is with reference to Ex.B-1, a sale deed alleged to have been executed by P.W.1 in favour of third person. that is dated 11. 1987 Document seems to be executed by Kala Jacob alias Kamakshi. P.W.1 was asked whether she has sold any property. She said that she has no property for sale and nobody acquired property from her. A specific question was also put her whether she has executed sale deed. She denied it. She was also asked whether she is known as Kala Jacob. For which also there is specific denial. Lower court has relied on the said circumstance taken along with her address shown in the plaint in O.S.No.2074 of 1993. Lower appellate court found that she has received summons in that address where she has addressed as Kala Jacob & Kamakshi. It must be noted that O.S.No.2074 of 1993 was filed long after dispute began and there is no reference anywhere in the written statement of respondent or in the plaint filed by them that P.W.1 is married to one Jacob or Jacob Janarthanam. It must be noted that O.S.No.2074 of 1993 was filed long after dispute began and there is no reference anywhere in the written statement of respondent or in the plaint filed by them that P.W.1 is married to one Jacob or Jacob Janarthanam. Why I am referring to this fact is even though she was referred as ‘Kala Jacob’ in the suit filed by Devaki, they have no case that P.W.1 was married to one Jacob Janarthanam Ex.B-1 is a registration copy of sale deed alleged to have been executed by P.W.1. She denies it. One of the attestors of deed have been examined as D.W.2 he has not identified plaintiff except to state that Kamakshi and Kala Jacob are one and the same person. I have already referred to the address given by plaintiff where she was residing after her marriage and her present address. That statement is also not denied in the written statement. Trial court held in para. 20 of the judgment that there is absolutely no evidence to show that Kala Jacob referred to in the plaint is referred to plaintiff when the same is specifically denied by P.W.1. 30. Another circumstances relied on by lower court is Ex.B-12 a certified copy of charge sheet in connection with a theft in the house of P.W.1. D.W.3 was examined to prove the charge sheet. He also did not identify the person. She also pleads ignorance where P.W.1 is the wife of Palanisamy. She was examined in April, 1996. She says that for the past more than 10 years P.W.1 has left the village and has gone to Padaippu. It is clear from the said statement that what she says about F.I.R. cannot have any reference to P.W.1. Lower appellate court simply held that as against D.W.3 there is no enmity spoken by P.W.1 and therefore that evidence will have to be taken as true. Regarding D.Ws.2 and 3 no question was put to P.W.1 and only then any explanation could be elucidated from her. 31. These are all the circumstances on the basis of which lower appellate court held that though Palanisamy and P.W.1 were living as husband and wife the same cannot be held as valid marriage. Lower appellate court also held that when there is rival claim the presumption is not applicable. 31. These are all the circumstances on the basis of which lower appellate court held that though Palanisamy and P.W.1 were living as husband and wife the same cannot be held as valid marriage. Lower appellate court also held that when there is rival claim the presumption is not applicable. According to me, the reasoning of lower appellate court is against the settled legal principles and evidence in this case. 32. The various circumstances relied on by lower appellate court to hold that P.W.1 is not wife of Palanisamy is based on no evidence or it is based only on assumptions. The various circumstances which I have extracted in this case have not even taken into consideration by lower appellate court. 33. Once it is found that P.W.1 is legally wedded wife of Palanisamy the further question arises is what is the legal status of Devaki. Who is first Plaintiff in O.S.No.2074 of 1993. According to her, she married Palanisamy, on 16. 1981 at Sri Arulmighu Agastheeswaram Alayam,. Tiruvannamalai Taluk. Exs.B-1 and B-3 are invitation cards and Ex.B-3 is Xerox copy of marriage certificate. Ex.B-14 is the register maintained by the temple where both Devaki and Palanisamy have singed along with their relations. It is in the form of notebook. Trial court held that because marriage has not been registered under Hindu Marriage Act and also Ex.B-14 cannot be said as Register kept in due course of business, the same cannot be relied on as a piece of evidence to prove the marriage. Trial court further held that when the first marriage is subsisting with P.W.1 even if there was a marriage with Devaki. The same is void under Hindu Law. Trial court further held that even though Devaki has given birth to children and fathers name is mentioned as Palanisamy that will not prove marriage between them, the same reasoning appellate court held in regard to P.W.1s marriage. So holding, trial court held that Devaki and her children are not entitled to any right. When the matter was taken in appeal, lower appellate court held that Exs.B-1 and B-2, B-14 taken together along with the evidence of D.W.4 who proved the register, their marriage stands proved. It also took into consideration the other evidence in the case to hold that there is valid marriage between them. 34. When the matter was taken in appeal, lower appellate court held that Exs.B-1 and B-2, B-14 taken together along with the evidence of D.W.4 who proved the register, their marriage stands proved. It also took into consideration the other evidence in the case to hold that there is valid marriage between them. 34. Merely because a marriage has not been registered under Hindu Marriage Act, it does not follow that in fact marriage has not taken place. To register the marriage is only for the purpose of evidence to prove the fact of marriage which has already taken place. An omission to register marriage will not invalidate marriage if in fact a marriage ceremony was performed. I take guidance to have the above view in view of the decision reported in Janaki Amma v. Rama Warier , 1985 K.L.T. 283, where learned Judge held omission to register marriage under Kerala Nair Act does not render a marriage invalid. Under Travancore Nair Act also there is a provision for registering marriage. Exs.B-1 and B-2 are documents long before dispute arose and they are invitation cards of Devaki. Apart from the evidence of D.W.1 there is also there evidence who speaks about the marriage. Children were also born in that alliance and they are plaintiffs 2 to 4 in O.S.No.2074 of 1993. The finding of trial court that there is no marriage cannot be said as correct. Finding of lower appellate court that there was marriage between Devaki and Palanisamy is correct. 35. Children were also born in that alliance and they are plaintiffs 2 to 4 in O.S.No.2074 of 1993. The finding of trial court that there is no marriage cannot be said as correct. Finding of lower appellate court that there was marriage between Devaki and Palanisamy is correct. 35. What is the legal consequence of second marriage of Palanisamy with Devaki when the first marriage is still subsisting, Sec.16(1) of the Hindu Marriage Act is the answer which reads thus: “Notwithstanding that a marriage is null and void under Sec.11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.” Under Sec.5 of the Hindu Marriage Act, one of the conditions for valid marriage is that neither party has a spouse living at the time of marriage.Sec.11 of the Hindu Marriage Act says that any marriage soleminized after the commencement of this Act shall be null and void and can be so declared by a decree of nullity of marriage if it contravenes nay one of the conditions specified in clauses (i), (iv) and (v) of Sec.5. From that provision, it is clear that so long as marriage with palaniswamy is subsisting, second marriage with Devaki is void. From the earlier part of discussion I have held that in fact a ceremony of marriage has taken place between Devaki and Palanisamy and marriage was celebrated. Taking into consideration these provisions along with Sec.11, though Devaki cannot get status as wife, her children shall be treated as legitimate children. The purpose of enacting that section is declared by the Honourable Supreme Court in the decision reported in P.E.K.Kalliani Amma v. K. Devi P.E.K.Kalliani Amma v. K. Devi P.E.K.Kalliani Amma v. K. Devi , A.I.R. 1996 S.C. 1963, wherein in para.55 of the judgment it is held thus: “Illegitimate children, on the contrary, are children as are not born either in Lawful wedlock, or within a competent time after its determination. It is on account of marriage, valid or void, that children are classified as legitimate or illegitimate. That is to say, the social status of children is determined by the Act of their parents. If they have entered into a valid marriage, the children are legitimate; but if the parents commit a folly, as a result of which a child is conceived, such child who comes into existence as an innocent human baby is labelled as illegitimate. Realising this situation, our Parliament and we must appreciate the wisdom of the legislators then adorning the seats in the august hall, made a law which protected the legitimacy of such innocent children. This was a bold, courageous and dynamic legislation which was adopted by other advanced countries.” [Italics supplied] 36. I am well aware of the limitations under Sec.100 of the Code of Civil Procedure that scope of interference in second appeal is limited only when substantial question of law arises for consideration. While considering substantial question of law, this Court while perusing evidence (not appreciation of evidence) is entitled to find out whether there is any factual error in the judgment of lower appellate court (See: Teharakhatton v. Salambin Mohammed Teharakhatton v. Salambin Mohammed Teharakhatton v. Salambin Mohammed , (1999(2 S.C.C. 635, para.10). This Court is also entitled to interfere when it is found that the finding of lower appellate court is perverse or not based on materials on record See: Karnataka Board of Wakf v. Anjuman -E-Ismail Madris-Un-Niswan See: Karnataka Board of Wakf v. Anjuman -E-Ismail Madris-Un-Niswan See: Karnataka Board of Wakf v. Anjuman -E-Ismail Madris-Un-Niswan , (1999)6 S.C.C. 373, para.12). 37. In a recent decision of the Honourable Supreme Court reported in Ishwar Das Jain (Dead) through by L.Rs. v. Sohan Lal (Dead), by L.Rs. Ishwar Das Jain (Dead) through by L.Rs. v. Sohan Lal (Dead), by L.Rs. Ishwar Das Jain (Dead) through by L.Rs. v. Sohan Lal (Dead), by L.Rs. , J.T. (1999(9 S.C. 305, their Lordships considered the circumstances under which interference is justified. Paragraphs 11 to 13 of the judgment read thus: “11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. , J.T. (1999(9 S.C. 305, their Lordships considered the circumstances under which interference is justified. Paragraphs 11 to 13 of the judgment read thus: “11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. This principle has been laid down in a series of judgments of this Court in relation to Sec.100, C.P.C. after the 1976 amendment. In Dilbagrai Punjabi v. Sharad Chandra , J.T. (1988)3 S.C. 308: 1988 S.C.C. (Supp.) 710, while dealing with a second appeal of 1978 decided by the Madhya Pradesh High Court on 20.8.1981,. L.M.Sharma, J. (as he then was) observed that: “The court (the first appellate court) is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises as of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding. This is the situation in the present case.” In that case, an admission by the defendant-tenant in the reply notice in regard to the plaintiffs as title and the description of the plaintiff as ‘owner’ of the property signed by the defendant were not considered by the first appellate court while holding that the plaintiff had not proved his title. The High Court interfered with the finding on the ground of non-considered of vital evidence and this Court affirmed the said decision. that was upheld. In Jagdish Singh v. Nathu Singh , (1992(1 S.C.C. 647, with reference to a second Appeal of 1978 disposed of on 4. 1991, Venkatachaliah, J. (as he then was) held”: “where the findings by the court of facts s vitiated by non-consideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings.” Again in Sundra Naicka Vadiayar v. Ramasami Ayyar Sundra Naicka Vadiayar v. Ramasami Ayyar Sundra Naicka Vadiayar v. Ramasami Ayyar , (1995(4 S.C.C. (Supp.( 534, it was held that where certain vital documents for deciding the question of possession were ignored - such as a compromise an order of the revenue court reliance on oral evidence was unjustified. In yet another case in Mehrunnisa v. Visham Kumari Mehrunnisa v. Visham Kumari Mehrunnisa v. Visham Kumari , J.T. (1997)9 S.C. 616: (1998)2 S.C.C. 295 arising out of second appeal of 1988 decided on 11. 1996, it was held by Venkataswami, J. that a finding arrived at by ignoring the second notice issued by the landlady and without noticing that the suit was not base don earlier notices, was vitiated and the High court could interfere with such a finding. This was in second appeal of 1988 decided on 11. 1996. 12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it is was omitted, an opposite conclusion was possible. In Sri Chand Gupta v. Gulzar Singh Sri Chand Gupta v. Gulzar Singh Sri Chand Gupta v. Gulzar Singh , J.T. (1991)5 S.C. 400: (1992(1 S.C.C. 143, it was held that the High Court was right in interfering in second appeal where the lower appellate court relied upon an admission of a third party treating it as binding on the defendant. The admission was inadmissible as against the defendant. This was also a second Appeal of 1981 disposed of on 29. 1985. 13. In either of the above situations, a substantial question of law can arise. The substantial question of law that arises for consideration in this appeal is: “Whether the courts below had failed to consider vital pieces of evidence and whether the courts relied upon inadmissible evidence while arriving at the conclusion that the mortgage was sham and that there was no relationship between the plaintiff and the defendant as mortgagor and mortgagee but the real relationship was as landlord and tenant. point 1 is decided accordingly.” In that decision their Lordships also relied on earlier decision of Supreme Court in , (1992)1 S.C.C. 647 , wherein it was held that non-consideration of relevant evidence or by essentially erroneous approach to the matter will be a ground for interference. Taking into consideration these decisions I feel that I will be justified in interfering in the second appeal. Ex.A-.5 is photograph of first plaintiff taken at the time of her marriage and not at the time when they were attending some other marriage. Taking into consideration these decisions I feel that I will be justified in interfering in the second appeal. Ex.A-.5 is photograph of first plaintiff taken at the time of her marriage and not at the time when they were attending some other marriage. Merely because in the photo in the passport Thali is not visible, the conclusion that the marriage would not have been celebrated according to customary rights is perverse reasoning. The approach of lower appellate court seems to be that Thali is for public exhibition and since it is not openly visible reverse conclusion could be arrived is a finding which cannot be encouraged by any court. Law declared by the Honourable Supreme Court and also by this Court along with Sec.16 of the Hindu Marriage Act was not taken into consideration and the entire judgment is based only on assumptions. The finding is also not based on evidence adduced for which there is no foundation in the pleadings. The finding of the lower court appellate court is essentially erroneous approach. For the above reasons it must be held that it is a fit case where interference is called for under Sec.100 of Code of Civil Procedure. 38. From the net result of the above discussion following result is arrived: P.Kamakshi who is first plaintiff in O.S.No.1647 of 1993 is legally wedded wife of Palanisamy and plaintiffs 2 to 4 in that case are legitimate children of deceased Palanisamy born in that wedlock. In view of the substance of marriage of Kamakshi with Palanisamy, marriage of D.W.1 Devaki with Palanisamy is void. But the children born in that marriage who are plaintiffs 2 to 5 in O.S.No.2074 of 1993 are declared as legitimate children born to Palanisamy in D.W.1. 39. In the result, it is declared that over the assets of Palanisamy, all the plaintiffs in O.S.No.11647 of 1993 and plaintiffs 2 to 5 in O.S.No.2074 of 1993 are claimants and they will be entitled to the amounts due to the deceased and also to inherit all his assets. 40. The judgment and decree of the courts below are set aside and the second appeals are disposed of as above. No costs. C.M.P.Nos.3674 and 3675 of 1998 are closed.