CHALLAMMAversusTILAGA & ORS.

                           [2009] 11 S.C.R. 831

>                              CHALLAMMA                                 A
                                    v.
                              TILAGA & ORS.
                     (Civil Appeal No. 4961 of 2009).
                              JULY 31, 2009
                                                                         B
               is.a. SINHA AND CYRIAC JOSEPH, JJ.)
           HINDU MARRIAGE ACT, 1955:
'-"

           s. 5 - Marriage - Validity of - HELD: Besides the             c
      evidence brought on record to establish ingredients of a valid
      marriage, presumption can also be drawn having regard to
      the fact that a man and woman had been residing together
      for a long time and society accepted them as husband and
      wife - Evidence Act, 1872 - ss. 50 and 114.                        D
j
           SUCCESSION ACT, 1925:

            s. 372 - Succession Certificate - Granted on the basis
       of evidence establishing that the deceased and the applicant
       had been residing together for a long period and the society      E
       accepted them as husband and wife - HELD: No ,exception
      can be taken to the finding of the trial court that applicant is
      wife of deceased - Nominee of the holder of a policy u/s 39
      of Insurance Act could not be treated as equivalent to an heir
      - Amount of interest under the policy can be claimed by heir       F
      in accordance with law of succession governing the parties -
      Accordingly, mother of deceased has rightly been held by
      courts below to be entitled to 1/4th share only in his estate -
      Insurance Act, 1938 - s.39 - Hindu Marriage Act, 1955 - s.5
      - Evidence Act, 1872 - ss. 50 and 114.
                                                                         G
          An application uls 372 of the Succession Act, 1925
      was filed by respondents no. 1 to 3 for grant of
      succession certificate after the death of one 'KS' which

                                    831                                  H
    832       SUPREME COURT REPORTS           [2009] 11 S.C.R.


A took place on 22.9.1988, stating that the deceased and
  respondent no. 1 married on 3.12.1984 and respondents
  2 and 3 were their children. The appellant, the mother of
  the deceased, opposed the application stating that the
  deceased was not married at all. She was shown as the
B sole nominee in four life insurance policies obtained by
  the deceased. The trial court on considering the oral and
  documentary evidence recorded a finding that the
  deceased and respondent no. 1 lived together for a
  period over 3 years and 9 months and the society
c accepted them as husband and wife, and held that a
   presumption of valid marriage should be drawn.
  Accordingly, the application was allowed. The first
  appellate court, while upholding the judgment, held that
  the appellant was entitled to 1/4th share in the estate of
  the deceased. The revision petition of the appellant
0
   having been rejected by the High Court, she filed the
   appeal.                                                         l.


        On the. question: whether respondent no. 1 was
    married to the deceased or not,
E
          Dismissing the appeal, the Court

       HELD: 1.1. The question as to whether a valid
  marriage had taken place between the deceased and
  respondent no. 1 is essentially a question of fact. In
F arriving at a finding of fact indisputably the trial court was
  not only entitled to analyze the evidences brought on
  record by the parties so as to come to a conclusion as
  to whether all the ingredients of a valid marriage as
  contained in s.5 of the Hindu Marriage Act, 1955 stood
G established or not, a presumption of a valid marriage
  having regard to the fact that they had been residing
  together for a long time and were accepted in the society
  as husband and wife, could also be drawn. It is also well
  settled that a presumption of a valid marriage although
H
          CHALLAMMA       v. TILAGA & ORS.              833

is a rebuttable one, it is for the other party to establish    A
the same. Such a presumption can be validly raised
having regard to s.50 of the
                           '
                               Evidence Act,
                                        . 1872. A heavy
burden, thus, lies on the person who seeks to prove that
no marriage has taken place. [Para 9 and 10) [837-C-D;
839-C-E]                                                       B

     Tutsi vs. Durghatiya (2008) 4 SCC 520; Ranganath
Parmeshwar Panditrao Modi vs. Eknath Gajanath Gajanan
Kulkarni (1996) 7 sec 681 and Sobha Hymavathi Devi vs.
Setti Gang9dhara Swamy (2005) 2 SCC 244, relied on.
                                                               c
      1.2. Respondent no. 1 deposed as PW-1 before the
trial court wherein she not only stated in great details the
factum of her marriage but also produced a document
styled as an 'agreement of marriage' which was
regtstered with the office of Sub-Registrar. If on the basis   D
of the evidence on record, the trial court has arrived at a
finding that the deceased had married respondent no. 1,
no exception thereto can be taken. A long cohabitation
and acceptance of the society of a man and woman as
husband and wife goes a long way in establishing a valid       E
marriage. [Para 8 and 1OJ [836-G-H; 838-A-B]

     2.1. Section 39 of the Insurance Act, 1938 enables
the holder of a policy, while effecting the same, to
nominate a person to whom the money secured by the
policy shall be paid in the event of his death. A nominee
                                                          F
could not be treated as being equivalent to an heir or
legatee. The amount of interest under the policy could,
therefore, be claimed by the heirs of the assur.ed in
accordance with the law of succession. governing them. , G
[Para 11] [839-F; 840-B)

    Vishin N. Khanchandani & Anr. Vs. Vidya Lachmandas
Khanchandani & Anr. (2006) 6 sec 724; and Smt. Sarbati
Devi & Anr. Vs. Ssmt. Usha Devi (1984) 1 SCC 424 - relied
on.                                                            H
    834        SUPREME COURT REPORTS             [2009] 11 S.C.R.


A        2.2. In view of the fact that the appellant is one of the
    heirs and legal representative of the deceased, she has
    been rightly held to be entitled to 1/4th share in the estate
    of the deceased. (Para 12] (840-F-G]

                          Case Law Reference:
B
          (2008) 4 sec s20           relied on           para 10

          (1996) 7 sec 681           relied on           para 10

          (2005) 2 sec 244           relied on           para 10
c
          (2006) 6 sec 124           relied on           para 11

          (1984) 1 sec 424           relied on           para 11

      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 4961 of 2009.
        From the Judgment & Order dated 17.1.2005 of the High
    Court of Karnataka at Bangalore in Civil Revision Petition No.
    1115 of 2004.

E         O.P. Chaturvedi and S.N. Bhat for the Appellant.

        R.S. Hegde, Chandra Prakash, Rahul Tyagi (for P.P.
    Singh) for the Respondents.

          The Judgment of the Court was delivered by
F
          S.B. SINHA, J. Leave granted.

       1. K.T. Subramanya (the deceased) was employed with
  Karnataka Power Corporation (for short, "KPC") at
G Linganamakki. He took four life insurance policies from Life
  Insurance Corporation of India being dated 13.1.1987,
  16.2.1987, 31.3.1987, and 3.6.1988. Indisputably, therein he
  nominated Challamma, his mother as the beneficiary thereof.
  The first respondent is said to have entered into a wedlock with
  the deceased on 3.12.1984. Subramanya died on 22.9.1988.
H
  CHALLAMMA v. TILAGA & ORS. [S.B. SINHA, J.]                835


      2. Respondent Nos. 2 and 3 are said to be the sons of         A
the deceased Subramanya and the first respondent herein. The
respondents filed an application for grant of succession
certificate in their favour in terms of Section 372 of the Indian
Succession Act, 1925 (for short, "the Act") in the Court of Civil
Judge, Sagar in respect of the scheduled debts. The said            B
application was marked as P & S.C. 3/89. Appellant admittedly
being the mother of the deceased filed an application for being
impleaded as a party therein, which was allowed. She objected
to the grant of the said succession certificate contending that
the deceased was not married .at all. The core question in view     c
of the aforementioned stand taken by the appellant in the said
proceedings was as to whether the first re~pondent was
married to the deceased or not.

      3. A large number of witnesses beihg P.Ws. 1 to 5,
 namely, Tilaga, first respondent herein (P .W.1 ), Muniyamma,      D
 the mother of respondent no.1 (P .W.2), Puttappa, father of the
 respondent No.1 (P.W.3), Y.M. Bangera, Administrative Officer,
L.l.C. of India, Sagar (P.W.4) and Subba Rao B.R., the
Personnel Officer of the K.P .C. (P .W.5) were examined by the
 respondents in support of their contention that the first          E
 respondent was married to the deceased .. A large number of
documents including photographs showing performance of
 marriage ceremony were also filed. Inter alia on a finding that
the first respondent and the deceased having been residing in
a quarter together for a period of 3 years, 9 months and 19 days    F
and furthermore having arrived at a fin~ing of fact that the
society acce'pted them as husband and wife, the learned trial
judge held that a presumption of valid marriage should be
drawn and on the basis thereof the application for grant of
succession certificate filed by the respondents herein was          G
allowed.                                    '"
                                               '
    4. Appellant, aggrieved by and dissatisfied with the said
judgment and order of the learned Civil Judge, preferred an
appeal thereagainst in the court of District Judge, Shimoga
                                                                    H
    836       SUPREME COURT REPORTS                [2009] 11 S.C.R.


A which was marked as Misc. Appeal No. 52 of 1995. The said
  appeal was eventually transferred to the Court of Additional
  District Judge. By reason of a judgment and order dated
  1.3.2004, the learned First Appellate Court opined that the
  appellant was entitled to 1/4th share in the estate of the
B deceased while upholding the judgment and order of the
  learned trial judge that the marriage by and between the
  deceased and the first respondent was valid and the
  respondent Nos. 2 and 3 were their sons.

       5. Still not satisfied, the appellant preferred Civil Revision
~ Petition No. 1115 of 2004 before the High Court which by
  reason of the impugned judgment has been dismissed.

       6. Mr. O.P. Chaturvedi, learned counsel appearing on             ,,_
  behalf of the appellant would contend that the courts below
D committed a serious error 1n passing the impugned judgments
  insofar as they failed to take into consideration the evidences
  brought on record by the parties in their correct perspective. It
  was urged that keeping in view the provisions of the Hindu
  Marriage Act, 1955, it was obligatory on the part of the first
E respondent to establish that all the ingredients of a valid           .
  marriage were proved. In a case of this nature where the first
  respondent was a woman of easy virtue, it was urged, the
  presumption of a valid marriage ought not to have been drawn.

         7. Mr. R.S. Hegde, learned counsel appearing on behalf
F   of the respondent, on the other hand, would support the
    impugned judgment.

       8. First respondent examined herself as P .W.1 before the
  learned trial judge. In her deposition she not only stated in great
G details  the factum of her marriage which took place on
  3.12.1984 at Dharmasthala but also produced a document
  styled as an 'agreement of marriage' which was registered with
  the office of Sub-Registrar, Sagar on 13.12.1984. She
  furthermore produced various documents to show that the
H deceased had insured his life with the Life Insurance
  CHALLAMMA        v. TILAGA & ORS. {S.B. SINHA, J.]           837


Corporation of India and also under group insurance while in          A
service. Furthermore some documents were also brought on
record to show that the deceased applied for allotment of a
house as a marrie}I person.

      Appellant examined herself as D.W.1. An officer of the Life
                                                                      B·
Insurance Corporation of India was also examined to prove the
life insurance policies ..

      9. The question as to whether a valid marriage had taken
place between the deceased Subramanya and the first
respondent is essentially a question of fact. In arriving at a        C
finding of fact indisputably the learned trial judge was not only
entitled to analyze the evidences brought on record by the
parties hereto so as to come to a conclusion as to whether all
the ingredients of a valid marriage as contained in Section 5
of the Hindu Marriage Act, 1955 stand established or not; a           D
presumption of a valid marriage having regard to the fact that
they had been residing together for a long time and has been
accepted in the society as husband and wife, could also be
drawn.
                                                                      E
     It is true, as has been contended by Mr. Chaturvedi, that
the appellant had brought on record certain documents to show
that the deceased in the year 1986 while applying for his
employment in Mysore Power Corporation showed his status
as 'single, but a specific finding of fact had been arrived at by
the courts below that all the subsequent documents clearly
                                                                      F
showed that not only the deceased married,thefirst respondent
but also he sought for allotment of a quarter as a married
person. It is of some significance to notice that one Subba Rao,
a personnel officer of the KPC while examining himself as
P.W.5 categorically stated that in terms of the rules for allotment   G
of quarter by the company commonly known as 'Township
Committee, Rules' quarters were allotted to married persons
only and clubbed accommodation were provided to the
bachelors. '
                                                                      H
    838        SUPREME COURT REPORTS                [2009] 11 S.C.R.


A      10. It is beyond any cavil of doubt that in determining the
  question of valid marriage, the conduct of the deceased in a
  ~ase of this nature would be of some relevance. If on the
  aforementioned premise, the learned trial judge has arrived at
  a finding that the deceased Subramanya had married the first
B respondent, no exception thereto can be taken. A long
  cohabitation and acceptance of the society of a man and
  woman as husband and wife goes a long way in establishing
  a valid marriage.

          In Tulsa v. Durghatiya [(2008) 4 SCC 520], this court held:
c
          "11. At this juncture reference may be made to Section
          114 of the Evidence Act, 1872 (in short "the Evidence Act").
          The provision refers to common course of natural events,
          human conduct and private business. The court may
D         presume the existence of any fact which it thinks likely to
          have occurred. Reading the provisions of Sections 50 and·
          114 of the Evidence Act together, it is clear that the act of
          marriage can be presumed from the common course of
          natural events and the conduct of parties as they are borne
E         out by the facts of a particular case.

          12. A number of judicial pronouncements have been made
          on this aspect of the matter. The Privy Council, on two
          occasions, considered the scope of the presumption that
          could be drawn as to the relationship of marriage between
F         two persons living together. In first of them i.e.
          Andrahennedige      Dinohamy      v.   Wijetunge
          Liyanapatabendige Balahamy. Their Lordships of the
          Privy Council laid down the general proposition that: (AIR
          p. 187)
G
          "... where a man and woman are proved to have lived
          together as man and wife, the law will presume, unless the
          contrary be clearly proved, that they were living together
          in consequence of a valid marriage and not in a state of
H         concubinage."
      CHALLAMMA v. TILAGA & ORS. [S.B. SINHA, J.]                    839


         13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan Their               A
         Lordships of the Privy Council once again laid down that:
         (AIR p. 138)

         "The law presumes in favour of marriage and against
         concubinage, when a man and a woman have cohabited
                                                                            B
         continuously for a number of years."

         14. It was held that such a presumption could be drawn
         under Section 114 of the Evidence Act."
'
         It is also well settled that a presumption of a valid marriage     c
    although is a rebuttable one, it is for the other party to establish
    the same. {See Ranganath Parmeshwar Panditrao Modi v.
    Eknath Gajanan Kulkarni [(1996) 7 SCC 681], and Sobha
    Hymavathi Devi v. Setti Gangadhara Swamy [(2005) 2 SCC
    244]}.                                                                  D
        Such a presumption can be validly raised having regard
    to Section 50 of the Indian Evidence Act. [See Tulsa (supra)]

        A heavy burden, thus, lies on the person who seeks to
    prove that no marriage has taken place.                                 E

          11. There is another aspect of the matter which cannot be
    lost sight of. Section 39 of the Insurance Act, 1938 enables the
    holder of a policy, while effecting the same, to nominate a
    person to whom the.money secured by the policy shall be paid
                                                                            F
"   in the event of his death. The effect of such nomination was
    considered by this Court in Vishin N. Khanchandani & Anr.
    Vs. Vidya Lachmandas Khanchandani & Anr. [(2000) 6 SCC
    724]wherein the law has been laid down in the following terms:

        " .... The nomination only indicated the hand which was             G
        authorised to receive the amount on the payment of which
        the insurer got a valid discharge of its liability under the
        policy. The policy-holder continued to have an interest in
        the policy during his lifetime and the nominee acquired no
        sort of interest in the policy during the lifetime of the policy-   H
    840        SUPREME COURT REPORTS               [2009] 11 S.C.R.


A         holder. On the death of the policy-holder, the amount
          payable under the policy became part of his estate which
          was governed by the law of succession applicable to him.
          Such succession may be testamentary or intestate.
          Section 39 did not operate as a third kind of succession
B         which could be styled as a statutory testament. A nominee
          could not be treated as being equivalent to an heir or
          legatee. The amount of interest under the policy could,
          therefore, be claimed by the heirs of the assured in
          accordance with the law of succession governing them."
c       In Smt. Sarbati Devi & Anr. vs. Smt. Usha Devi [(1984)
    1 SCC 424], this Court held:

          "4. At the outset it should be mentioned that except the
          decision of the Allahabad High Court in Kesari Devi v.
D         Dharma Dev on which reliance was placed by the High
          Court in dismissing the appeal before it and the two
          decisions of the Delhi High Court in S. Fauza Singh v.
          Ku/dip Sing and Uma Sehgal v. Dwarka Dass Sehgal in
          all other decisions cited before us the view taken is that
E         the nominee under Section 39 of the Act is nothing more
          than an agent to receive the money due under a life
          insurance policy in the circumstances similar to those in
          the present case and that the money remains the property
                                                                         --
          of the assured during his lifetime and on his death forms
          part of his estate subject to the law of succession
F
          applicable to him .... "

       12. In view of the fact that the appellant was one of the heirs
  and legal representatives of the deceased Subramanya, there
  cannot be any doubt whatsoever that she had been rightly held
G to be entitled to 1/4th share in the estate of the deceased
  Subramanya.

        13. For the aforementioned reasons, the appeal is
    dismissed with costs. Counsel's fee assessed at Rs.5,000/-.

H R.P.                                           Appeal dismissed.