JUDGMENT : Ajoy Kumar Mukherjee, J. 1. This second appeal has been preferred challenging the decree dated 06.09.2019 passed by learned Additional District Judge, Tufunganj in connection with Title Appeal no. 1 of 2018 arising out of judgment and decree dated 22/12/2017 passed by learned Civil Judge(Junior Division) Tufanganj in connection with T.S no. 12 of 2017. 2. Plaintiffs’ case in a nutshell is that plaintiff no. 1 Tarulata Dakua was married to deceased Harendra Nath Dakua in 1986 and after marriage plaintiff no. 1 started residing with her aforesaid husband. Due to such wedlock one daughter namely plaintiff no. 2 and one son namely plaintiff no. 3 were born. Said Harendra Nath Dakua was employed as a constable under West Bengal police department and while he was in service he died on 1st may 2006. On his death the plaintiffs being the legal heir of said deceased Harendra Nath Dakua and plaintiff no. 1 being the guardian of plaintiff no. 2 and 3, applied before the Additional treasury officer Tufunganj for pension and death benefits but the said officer by his memo dated 03/10/2007,informed the plaintiffs that no payment can be made in their favour as the authority of the P.P.O has been issued in favour of defendant no. 3 Smt. Angur Bala Dakua vide P.P.O no. Pan/V/F/64850. 3. It is the case of the plaintiff that said Angur Bala has/had no connection with the deceased Harendra Nath Dakua and the plaintiff no 1 being the only wife and plaintiff no. 2 and 3 being his son, are his only legal heir and are entitled to receive all the death benefits and outstanding amount.Accordingly plaintiff prayed for a declaration that the plaintiffs are entitled to get the money due to death of late Harendra Nath Dakua and also for declaration that said Angur Bala is not entitled to get any amount whatsoever and also for permanent injunction restraining defendant no. 1 and 2 from paying any amount to said Angur Bala and for a mandatory direction upon defendant no. 1 and 2 to disburse and pay all the aforesaid amounts to the plaintiffs. 4. 1 and 2 from paying any amount to said Angur Bala and for a mandatory direction upon defendant no. 1 and 2 to disburse and pay all the aforesaid amounts to the plaintiffs. 4. The defendant no.3 Angur Bala Dakua appeared in the suit and filed written statement contending that a Hindu Marriage between said Harendara Nath Dakua and the defendant no.3 took place on 28 th Ashar, 1389 BS corresponding to English calendar month of July, 1982 and they started living as husband and wife and due to said wedlock, the defendant no.3 also gave birth to a female child on 20.07.1983. It has been further contended by the defendant no.3 that the marriage between the deceased Harendra Nath and the defendant no.3 was never dissolved by any decree of divorce and therefore the claim of plaintiffs marriage with said Harendra Nath in the year 1986 has no force in law. It has been further stated that after getting service, deceased Harendra Nath was not giving proper alimony to the defendant no.3, for which she approached before the appropriate authority of police department, who after hearing granted alimony to the defendant no.3 from the salary of deceased HarendaraNath. It is further submitted on behalf of the defendant no.3 that she started getting family pension and other death benefits of the deceased and used to divide financial benefits with the plaintiff no. 2 and 3 and plaintiffs did not raise any objection against said arrangement. The plaintiff no.1 acting as guardian of plaintiff no.2 and 3 had also withdrawn aforesaid amounts on their behalf and therefore she cannot challenge the same. Moreover plaintiff in his plait has also not prayed for cancelling marriage of defendant No.3 with said Harendra Nath. 5. Learned Trial court framed issue to decide as to whether plaintiff no.1 is the legally married wife of late Harendara Nath Dakua and whether late Harendra Nath had any relation with defendant no.3, Angur Bala along with other issues. During the course of trial the plaintiff filed and proved birth certificate, voter ID card, ration card, and some other documents including bank pass book, LIC policy and letters in support of her claim that plaintiff no.1 is the legally married wife of defendant no.1 and such documents are marked as exhibit 1to 16. During the course of trial the plaintiff filed and proved birth certificate, voter ID card, ration card, and some other documents including bank pass book, LIC policy and letters in support of her claim that plaintiff no.1 is the legally married wife of defendant no.1 and such documents are marked as exhibit 1to 16. The defendant on the contrary filed voter card,ration card, information slip disclosing birth of a female child and also document for payment of death gratuity and family pension etc., which are marked as exhibit A to F but the marriage invitation card and some orders relating to aforesaid payment of alimony to defendant no.3 by said Harendra Nath Dakua were marked ‘X’ ‘Y’ ‘Z’ for identification. 6. Learned Trial Court while deciding the principal issue came to a finding that the burden under section 101 of the Evidence Act shifted upon the defendant no.3 to prove her relation with Harendra Nath Dakua. But defendant no.3 only deposed in this case as DW2 and she has not brought any other witness in support of her contention before the court. He further observed that the documents filed by defendant no.3 namely ration card, voter ID card, Authorisation letter for payment of family pension and gratuity,disclosing the name of her husband as Harendra Nath Dakua, can not be said to be a proof of marriage. The Trial Court recorded that after going through exhibit-ii, it appears that the name of defendant no.3 has been mentioned as first wife and the name of plaintiff no.1 has been mentioned as second wife and the plaintiff no. 2 and 3 have been mentioned as the daughter and son of late Harendra Nath Dakua. However, while adjudicating said issue Trial Court held that the ration Card, or other identity cards are not proof of marriage and as the defendant no.3 has failed to discharge the burden shifted upon her by calling any witness like priest, the trial court decreed the suit in favour of plaintiff declaring that plaintiffs are only entitled to get the monetary benefit due to death of Harendra Nath Dakua and defendant no.3 is not entitled to get any amount whatsoever nor she had any relation with late Harendra Nath Dakua. 7. 7. Being aggrieved by the said judgment dated 22.12.2017 the defendant no.3 preferred appeal before the court below and the court below by the impugned judgment, set aside the judgment and decree passed by the Trial Court and thereby allowed the first appeal on contest against the respondent with cost of Rs. 3,000/-. 8. While admitting the present appeal a Division Bench of this court by an order dated 15.12.2021, have framed the following substantial questions of law. (1) Whether the Appeal court below has committed substantial error of law in reversing the judgment and decree of the learned Trial Judge by discarding the Exbt. Nos. 1 & 2, i.e., the Birth Certificates of plaintiff nos. 2& 3 wherein the name of Harendra Nath Dakua appeared as their father particularly when the said documents were admitted in evidence without any objection. (2) Whether the Appeal Court below has committed substantial error of law in dismissing the suit as a whole without considering the claim of the plaintiff nos. 2 and 3 vis-a vis the provision of sub-section (3) of section 16 of the Hindu Marriage Act, 1955. Decisions with reason 9. It is admitted position in the present context that neither the plaintiff no. 1 nor the defendant no.3 has filed any marriage certificate in support of marriage with Harendra Nath. In such view of the matter shifting of burden upon the defendant no.3 to disprove the claim of plaintiff is a perverse finding on the part of Trial Court. This perversity in the order impugned further gets prominent when the Trial Court observed that the documents filed by the defendant no.3 like original voter card, original ration card, information slip regarding birth of child and order granting death gratuity are not proof of marriage but in the same breath trial court held that by exhibiting the birth certificate of plaintiff no.2 and 3 and the voter card, ration card, insurance policy entry in the bank pass book, plaintiff no.1 has successfully proved her marriage with Harendra Nath Dakua, and/or for the reason that plaintiff no. 1 succeeded in proving that she lived together with Harnedra Nath for about 7 years. 10. 1 succeeded in proving that she lived together with Harnedra Nath for about 7 years. 10. When the matter came up before the first appellate court, the court below marked defendants documents like marriage invitation card, discharge certificate and the letter issued from the office of AG of West Bengal addressed to the treasury officer Tufanganj in favour of Angur Bala and letter addressed to SP,as exhibit G to J2, invoking his power under order XLI rule 27 of the Code. Relying upon the defendants documents and evidence,the court below held that exhibit J1 and J2 which are dated 07.02.1993 and 14.06.2000 shows that Harendra Nath Dakua did not maintain his first wife Angur Bala and hence maintenance amount of Rs. 5,00/- was directed to be paid from his salary by the first order which was subsequently enhanced to Rs.1000/-by the second order. Accordingly court below held if Angur Bala is not the legally married wife of Harendra Nath, there is no reason why the aforesaid orders would have issued in favour of Appellant Angur Bala and such evidence has been well founded in the pleading made by defendant no.3 in his written statement. Moreover Angur Bala has proved her marriage invitation card which is marked exhibit G but plaintiff no. 1 Tarulata could not come up with any such document. Accordingly court below held that merely on the basis of exhibit 1 and 2 which are the birth certificate of plaintiff no 2 and 3, it cannot be said that Harendra married plaintiff no.1 according to Hindu marriage Act and Harendra Nath even if married plaintiff no.1 in 1986, such marriage took place during continuance of Harendra Nath’s first marriage with defendant no.3 Angur Bala, which is violative of section 5 of Hindu Marriage Act, 1955. Court below accordingly held that plaintiff no.2 and 3 are illegitimate daughter and son of Harendra Nath and court below also specifically held that though they are illegitimate children but their illegitimacy does not disentitle them from getting the legitimate dues of the family pension and other benefits payable upon death of Harendra Nath Dakua, according to section 16 of the Hindu Marriage Act. 1955. 11. It is now well settled that the third court cannot entertain an appeal upon any question as to the soundness of finding of fact by the second court,who is the last court of facts. 1955. 11. It is now well settled that the third court cannot entertain an appeal upon any question as to the soundness of finding of fact by the second court,who is the last court of facts. While saying so I am not unmindful to the position of law that a finding of fact of first appellate court can be subject matter to challenge in second appeal,in a case where the High Court thinks that the evidence accepted by the First Appellate Court could not have been reasonably accepted by the said Court. In fact there are two situations wherein interference in Second Appeal with findings of fact is permissible. Firstly where materials or relevant evidence is not considered, which if considered would have laid to an opposite conclusion and secondly when a finding has been reached by the appellate court by placing reliance on inadmissible evidence, which if omitted would have resulted in a contrary conclusion. In the present context the court below on the basis of evidence have correctly recorded finding off act and I find nothing to say that said finding by the court below is unreasonable or irrational. During the course of hearing appellant/plaintiff could not raise any issue which can suggest that the court below have come to a conclusion relying upon any inadmissible evidence or that the court below had failed to consider any relevant evidence and as such the question of interference by this High Court on finding of fact,under section 100 of the code does not arise. 12. However, though the court below quoting section 16 of the Hindu Marriage Act, has rightly observed that plaintiff no. 2 and 3 being the illegitimate children of Harendra Nath is entitled to get the legitimate dues upon death of Harendra Nath Dakua but while he passed the judgment he has omitted to mention the same in the operative part of the judgment. This part is only required to be modified in this second appeal, while other parts of the judgment impugned passed by the court below is upheld in this second appeal. 13. In such view of the matter the judgment and decree passed by the court below dated 28.08.2019 and 16.09.2019 respectively in T.A. No. 01 of 2018 is modified to the extent that the defendant no.3 and plaintiff no. 13. In such view of the matter the judgment and decree passed by the court below dated 28.08.2019 and 16.09.2019 respectively in T.A. No. 01 of 2018 is modified to the extent that the defendant no.3 and plaintiff no. 2 and 3 are entitled to get the monetary benefit in equal share, which they are entitled due to death of late Harendra Nath Dakua and the defendant no. 1 and 2 are directed to pay the pensionery and other death benefits accrued due to death of Harendra Nath Dakua including the outstanding amount with interest (if any)to defendant no.3 and plaintiff no. 2 and 3 in equal share subject to other statutory provision and Rules applicable thereunder. The rest portion of judgment impugned shall remain un interfered. 14. SA 1 of 2023 accordingly disposed of. 15. Urgent Xerox certified photocopies of this Judgment, if applied for, be given to the parties upon compliance of the requisite formalities.