Madhya Pradesh High Court
Bhagwandas Yadav vs Rohit Tiwari on 27 January, 2010
Equivalent citations: AIR 2010 (NOC) 589 (M.P.), 2010 AIHC (NOC) 856 (M.P.)
-1- (C.R. No.53 /2008)
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH: HON'BLE SHRI JUSTICE P.K.JAISWAL
CIVIL REVISION NO. 53 of 2008
Bhagwandas Yadav
Vs
Rohit Tiwari
For applicant : Shri Vipin Yadav, Advocate
For respondent No.1: Shri Sanjay Agrawal, Advocate
For respondent No.2 :Shri M.S. Bhatti, Advocate
For respondent No.3: Shri V.S. Choudhary, Advocate
ORDER
(27/01/2010) This revision under Section 115 of the Code of Civil Procedure, 1908 has been filed by the unsuccessful applicant whose application for grant of succession certificate under Section 372 of Indian Succession Act, 1925 (in short 'the Act') has been rejected by the Trial Court on the ground that his marriage with the deceased Basanti Tiwari which was solemnized on 15.11.1981 was disbelieved by the Trial Court vide order dated 27.2.2006, passed in Succession Case No.30/2005, and appeal against the said order was also dismissed by the impugned order dated 23.1.2008 passed by VI Additional District Judge, Sagar in Civil Appeal No.4/2007.
2. The applicant - Bhagwandas Yadav filed an application under Section 372 of the Act for grant of succession certificate against the non-applicants in respect of shares, fixed deposits of UTI, State Bank of India, LIC policies, GPF, gratuity, leave encashment, GIS, Kisan Vikas Patra, Fixed Deposits and Post Office deposits etc. etc. amounting to Rs.38,69,452/- and jewelleries lying in the bank locker amounting to Rs.1,41,276/- on the ground that his marriage with the deceased was solemnized on 15.11.1981 in presence of her
-2- (C.R. No.53 /2008) real sister Shanti Bai, Jawalal Mukhariya and 2-3 friends of the applicant and her relatives at Jabalpur, as per Hindu customs. He further pleaded that in the year 1959, he came in the service of Central Excise Department and his first posting was made at Sagar. After his first posting, he joined at Sagar and had taken the house of the father of the deceased on rent which was situated at Rampura Ward at Sagar and at that time he had intimacy with the deceased which later on turned into friendship with her. In 1961 he was transferred to Jabalpur where he was posted till 1964 and during those period, she met him at Jabalpur and then they have started liking to each other. In 1964 the petitioner was again transferred to Sagar. She after her graduation applied for UDT and in the year 1965 she was appointed as UDT and posted at Begumganj of District Raisen and thereafter she did B.Ed. course from Jabalpur on 6.7.1968 and thereafter she was posted at Damoh and then to Hatah. In between the applicant and deceased kept meeting with each other and also visited South India. In the said visit, deceased also accompanied him. Her father died on 30.4.1974. After the death of her father, with the consent of her family members, her marriage was solemnized with the applicant and since then the applicant and deceased had started living as husband and wife in one house. On 11.4.2005 she died due to vehicular accident. At that time, the applicant was residing with her in House No.113, Poddar Colony, Shivaji Ward, Sagar. On these facts, the applicant prayed for grant of succession certificate to receive the dividends, interest, securities, FDR, retiral benefits and mutate his name and withdraw the amount from the bank and collect all the movable estate of the deceased.
3. In support of the said fact, he examined himself as AW-1, Mohd. Majid alias Majju (AW-2), Rakesh Kumar Tiwari (AW-3), Moh. Uvesh Khan (AW-4), Jawaharlal Mukharya (AW-5) and sister of the deceased Shanti Bai (AW-6). AW-1 to AW-6 in their statement very categorically stated that the applicant is husband of the deceased-Basant Tiwari and their marriage was performed in
-3- (C.R. No.53 /2008) the year 1981 on 15.11.1981. On 20.2.2006, non-applicant No.1 Rohit Tiwari was examined. Non-applicant No.2 Shanti Tiwari was examined as AW-6 on 10.2.2006. The applicant in support of her marriage with Basanti Tiwari filed photographs vide Ex.A-2 to A-4, share certificates, LIC policies, post office pass book, certificates etc etc vide Annexures A-5 to A-101. No documentary evidence was produced by the applicant regarding his marriage with Basanti Tiwari. The applicant and deceased were Government servants but they never disclosed the factum of marriage in their Government records nor the deceased after her marriage filed any application for change of her surname nor she during her life time nominated the name of the applicant as her legal nominee to receive the retiral benefits and other amounts. The deceased after her marriage was in Government service for quite number of years but she never disclosed about her marriage in the Government record nor she applied for change in her service record. Similar is the position of the applicant.
4. The Trial Court after hearing the arguments of learned counsel for the applicant granted one more opportunity to the applicant to produce some documentary evidence to prove the factum of his marriage with the deceased and fixed the case for 14.2.2006. In spite of opportunity, the applicant failed to file any document to prove the factum of his marriage with the deceased. In absence of any documentary evidence the presumption was drawn by the Trial Court that in absence of any documentary evidence adverse inference has been drawn against the applicant under Section 114(g) of Indian Evidence Act. The Trial Court held that there was no evidence to show that the marriage between the applicant and deceased-Basanti Tiwari had been solemnized and held that there was no valid marriage between them and rejected the application for grant of succession certificate vide order dated 27.2.2006.
5. The applicant challenged the said judgment by filing appeal before the lower appellate Court under Section 384(2) of the Act. The lower appellate court after scrutinizing the evidence on record upheld the finding recorded by
-4- (C.R. No.53 /2008) the Trial Court by holding that there was no valid marriage between the applicant and deceased-Basanti Tiwari and dismissed the appeal of the applicant.
6. Learned counsel for the applicant drew my attention to the oral and documentary evidence on record and submitted that the factum of his marriage with the deceased was duly proved by Jawaharlal Mukharya (AW-5) who was present at the time of marriage on 15.11.1981, non-applicant No.1 and 2, Rohit Tiwari and Shanti Tiwari who are sister and nephew of the deceased and they in their statement very categorically stated that the marriage of the deceased was solemnized with the applicant but both the Courts below committed an error in holding that the applicant had not brought on record any document to show his marital status. He further submits that they had been residing together for a long time right from 1981 till April, 2005 and have been accepted in the society as husband and wife and when these facts have not been disputed by the family members of the deceased, the finding of the Courts below that in absence of documentary evidence the act of marriage cannot be presumed from the common course of natural evidents and the conduct of the parties. In support of the said contention, he drew my attention to the decision of the Apex Court in the case of S.P.S.Balasubramanyam vs. Suruttayan alias Andalipadayachi and others, (1994) 1 SCC 460, Ranganath Parmeshwar Panditrao Mali and another vs. Eknath Gajanan Kulkarni and another, (1996) 7 SCC 681, Shantinath Ramu Danole and another vs. Jambu Ramu Danole and others, (1996) 11 SCC 88, Tulsa and others v. Durghatiya and others, 2008 AIR SCW 1148, Gautam Sarup v. Leela Jetly and others, 2008 AIR SCW 4113 and Challamma vs. Tilaga and others, (2009)9 SCC 299.
7. Learned counsel for the first non-applicant raised a preliminary objection regarding maintainability of this civil revision on the ground of res judicata and submitted that after death of deceased on 11.4.2005 the present
-5- (C.R. No.53 /2008) applicant had filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal therein the learned Tribunal after appreciating the evidence of the applicant, Mohd. Majid and Smt. Radha Tiwari came to the conclusion that in absence of proof of his marriage with the deceased, it cannot be said that applicant is husband of the deceased and he does not come within the purview of legal representative of deceased-Basanti Tiwari and, therefore, under the provisions of sub-clause (c) of Section 166 of the Motor Vehicles Act, the claim petition filed by the applicant is not maintainable and the same was dismissed vide order dated 20.9.2007 in MVC No.20/2007.
8. On the other hand, learned counsel for the applicant submits that the learned Tribunal on the basis of order dated 27.2.2006 passed by the Trial Court rejected the claim petition against which he filed an appeal before the High Court under Section 173 of M.V. Act, 1988 and also challenged the order dated 27.2.2006 which is subject matter of this revision application.
9. The preliminary objection raised by the first non-applicant is that the claim petition finally decided by a court of limited jurisdiction will operate as res judicata in a subsequent succession proceedings.
10. On merits, learned counsel for the non-applicants supported the finding of the lower appellate court and submitted that once the applicant had failed to prove his marriage with the deceased, by adducing any cogent evidence, the said finding is a finding of fact and the same cannot be re-appreciated in this revision application filed by the applicant. With the above arguments, he prayed for dismissal of the revision application.
11. I have heard the arguments of the learned counsel for the parties and perused the record of the case.
12. The first point for consideration in this revision application is whether the present application filed by the applicant under Section 372 of the Indian Succession Act, 1925 is barred by the principles of res judicata under Section
-6- (C.R. No.53 /2008) 11 read with exception (VIII) of CPC.
13. It is not disputed that if it is held that the present suit/proceeding is barred by principles of res judicata, there is no necessity of giving any finding on other matters arising in the suit. Explanation (VIII) has been added to Section 11 which runs as follows :-
"Explanation VIII. An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]"
14. The expression "a Court of limited jurisdiction" occurring in Explanation VIII means Courts other than the ordinary Civil Courts. These Courts are Revenue Courts, Land Acquisition Courts, Administrative Courts, Insolvency Courts, Guardianship Courts, Probate Courts etc. These Courts are to try certain specific matters and in that sense they may be said to be Courts of limited jurisdiction. These Courts are also Courts of exclusive jurisdiction in respect of the matters they are to try. The decisions of such Courts operated as res judicata in subsequent suits not by virtue of Section 11 but on the general principles of res judicata. By enacting Explanation VIII, the legislature brought the decisions of such Courts within the purview of Section
11. In other words, it is not necessary not to apply the general principles of res judicata, but in view of Explanation VIII the decisions of the Courts of limited jursidiction or exclusive jurisdiction will operate as res judeicata in subsequent suits under Section 11. A decision on an issue heard and finally decided by a Court of limited jurisdiction will operate as res judicata in a subsequent suit notwithstanding such Court of limited jurisdiction was not competent to try such subsequent suit.
15. The decision of a Court of limited jurisdiction shall have to be on a matter in which that Court had exclusive jurisdiction. The decision rendered by it would operate as res judicata even if it did not have the jurisdiction to decide
-7- (C.R. No.53 /2008) the subsequent suit. But, all findings of the Courts of exclusive jurisdiction will not operate as res judicata. Only those findings which that Court had exclusive jurisdiction to render would operate as res judicata. Here in the present case, Motor Accident Claims Tribunal did not have jurisdiction to decide the dispute regarding the grant of succession certificate and, therefore, such decision would not operate as res judicata in a subsequent civil suit. The Apex Court in the case of Madhvi Amma Bhawani Amma and others v. Kunjikutty Pillai Meenakshi Pillai and others, AIR 2000 SC 2301 held that in order to apply the general principle of res judicata Court must first find, whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceeding, was it between the same parties, and was it decided by such Court. Thus, there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, if accidentally any finding is recorded it would not come within the periphery of the principles of res judicata.
16. In Pawan Kumar Gupta v. Rochiram Nagdeo, (1999) 4 SCC 243 :
(1999 AIR SCW 1420 : AIR 1999 SC 1823) the Apex Court observed that the rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the Court from trying an issue which has been directly and substantially in issue in a former suit between the same parties, and has been heard and finally decided by that Court. It holds, it is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata.
17. In the present case, there was no issue in the earlier proceedings of claim petition whether the applicant would be entitled to inherit the estate of the deceased in the proceedings under Section 372 of Indian Succession Act though the foundation of challenge by the applicant to claim the amount of compensation on death of the deceased who was said to be his legally
-8- (C.R. No.53 /2008) married wife was legal heir of the said deceased but the claim of the applicant to inherit the questioned movable properties in the motor vehicle claim case was never raised no such a issue was framed in earlier proceedings and, therefore, this Court is of the view that in view of the law laid down by the Apex Court in the case of Madhvi Amma Bhawani Amma and others v. Kunjikutty Pillai Meenakshi Pillai and others (supra), it is only the decision on an issue and not mere finding on any incidental question to reach such decision, which operate as res judicata. So, even if there be any finding regarding any relationship i.e. the applicant is not the legal heir of the deceased, in absence of any issue it would be of no help to the non-applicant No.1 nor on that basis it can be said that the present succession proceedings are barred under Explanation VIII of Section 11 of CPC. Even otherwise, said decision of the Tribunal is under challenge before this Court and in that decision the learned Tribunal relying the order dated 27.2.2006 passed by the Trial Court in succession proceeding which is impugned in this civil revision and, therefore, the decision of Motor Accident Claims Tribunal would not operate as res judicata because the Motor Vehicle Accident Claims Tribunal had no exclusive jurisdiction to decide the question of grant of succession certificate under the provisions of Indian Succession Act as the Motor Accident Claims Tribunal has no exclusive jurisdiction to decide the succession certificate, its decision on the question of grant of succession certificate would not operate as res judicata. The decisions, Kumarmoni Sa, v. Himachal Sahu and others, AIR 1981 ORISSA 177 and R. C. Tiwari v. M. P. State Co-operative Marketing Federation Ltd. and others, AIR 1997 SC 2652 placed reliance by learned counsel for the non-applicants will not be applicable in the present facts and circumstances of the case.
18. On the aforesaid analysis, this Court is of the view that the finding of the Motor Accident Claims Tribunal in the previous claim case would not operate as res judicata in the present proceedings filed under the provisions of Indian
-9- (C.R. No.53 /2008) Succession Act, 1925 and as such the preliminary objection of the non- applicants is hereby rejected.
19. Now I will consider the question of grant of succession certificate in favour of the applicant and whether the applicant is husband of the deceased- Basanti Tiwari and his marriage was solemnized with the deceased or not.
20. It was submitted by learned counsel for the applicant that the courts below mis-appreciated the documentary as well as oral evidence with regard to factum of marriage of applicant with the deceased-Basanti Tiwari. Learned counsel for the applicant urged that the evidence on record sufficiently establishes the marriage of deceased - Basanti Tiwari with the applicant but the Courts below not only fell in error in rejecting the oral evidence but also failed to take into consideration the presumption of valid marriage of deceased
- Basanti Tiwari with the applicant in the facts and circumstances of the case.
21. The applicant had examined six witnesses to prove his marriage with deceased-Basanti Tiwari. Smt Shanti Tiwari is the sister of the deceased - Basanti Tiwari who deposed that the marriage of her sister with the applicant took place in the year 1981. Jawaharlal Mukharya (AW-5) has deposed that at the time of marriage of the applicant with deceased-Basanti Tiwari, he was present. This fact is also supported by the non-applicant Rohit Tiwari, nephew of the deceased. It is not disputed by learned counsel for the applicant that after marriage, deceased-Basanti Tiwari never disclosed the fact of her marriage with the applicant nor she was ever introduced as wife of the applicant. After marriage there is no change in the service record of the applicant as well of the deceased. They in their service records never disclosed the factum of their marriage nor in the service record they have been shown as husband and wife. No name of the applicant has been nominated in the nomination form or in the service book of the deceased. On evaluation of these facts, the Courts below recorded finding that the applicant has failed to prove the factum of marriage with the deceased. No co-habitation was made
-10- (C.R. No.53 /2008) between them nor there is any direct evidence regarding their marriage. In spite of direction given by the Trial Court, the applicant failed to produce service record or other relevant record to prove that he was married with the deceased Basanti Tiwari.
22. Learned counsel for the non-applicant No.1 and 2 before this Court raised an objection regarding the marriage of the applicant with Smt Basanti Tiwari.
23. On 22.9.2008, Mr. Puroshottam Lal Tiwari, real brother of the deceased was personally present before this Court with his counsel and made a statement before this Court that he has no objection in granting succession certificate in favour of applicant. He also filed an affidavit to the said effect on 25.8.2008.
24. In the case of Shantinath Ramu Danole and another vs. Jambu Ramu Danole and others (supra), the Apex Court relying on the statement of the petitioner's witnesses and relatives of the deceased came to the conclusion that the evidence of such relatives and friends could not be thrown out only because they happened to be relatives and friends unless their testimony suffers from some inherent infirmity which is not to be found in the evidence of above witnesses. The Apex Court held that the evidence of general reputation for purpose of proof or disproof of a marriage is admissible. Under Section 50 of the Evidence Act when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. In the present case, Smt Shanti Tiwari and Jawaharlal Mukharya who are real sister and friend of the applicant and an eye witness of the marriage of the applicant with the deceased solemnized on 15.11.1981 and thus had the means of special knowledge of the relationship between the applicant and the deceased. They in their statement very categorically deposed that deceased was married
-11- (C.R. No.53 /2008) to the applicant in the year 1981 and because they belong to different class and therefore they did not disclose their marriage before the society nor they filed any application for change of status/surname and due to these reasons in the nomination form the name of applicant was not nominated by the deceased. It is also proved that during her life time deceased was residing with the applicant in the same house at Sagar and no one ever raised any dispute that they were not living as husband and wife. From this evidence on record, it is clearly established that deceased-Basanti Tiwari and applicant were living as husband and wife raising a strong presumption that they were married.
25. In the case of S.P.S.Balasubramanyam vs. Suruttayan alias Andalipadayachi and others (supra), the apex court held that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable. In the case of Ranganath Parmeshwar Panditrao Mali and another vs. Eknath Gajanan Kulkarni and another (supra), the Apex Court held that notwithstanding non-applicant's contention that there had been no valid marriage between Panditrao and Shevantabai, in view of the consistent evidence that Panditrao and Shevantabai were living together for long years as husband and wife and the non-applicant's admission of the aforesaid fact, a legal presumption of marriage does arise though the presumption is rebuttable and this presumption has not been rebutted by the defendant. The Apex Court set aside the judgment and decree of the High Court by holding that the High Court committed an error of law in recording a finding that presumption would arise only if the factum of marriage is proved by holding that if factum of marriage is proved, the question of raising presumption does not arise. The apex Court in para 6 said that :
6. In view of the rival stand of the parties the first question that arises for consideration is whether merely because the factum of marriage has not been established, was it open for the lower appellate Court as well as the
-12- (C.R. No.53 /2008) High Court to set aside the finding of the trial Judge, which finding was based on not only arising out of the legality of a presumption from the fact of living together as husband and wife but also the admission of defendant No. 1 that Shevantabai was residing with Pandit in the Wada in village for long years and the plaintiff No. 1 is son of Shevantabai? It is no doubt true that a finding arrived at on a question of fact by the lower appellate Court or the High Court is not ordinarily interfered with by this Court under Article 136 of the Constitution. But if such finding is recorded by non consideration of some vital piece of evidence or admission of the adversary, then this Court will be fully justified in interfering with the finding in question. In the case in hand, the consistent evidence being that Panditrao and Shevantabai were living together for long years as husband and wife and plaintiff No. 1 is their son and the defendant also admitted the aforesaid fact but contended that there had been no valid marriage between Panditrao and Shevantabai, a legal presumption does arise, though the presumption is rebuttable and this presumption has not been rebutted by the defendant. It has been held by this Court in the case of S. P. S. Balasubramanyam v.
Surutayan, (1994) 1 SCC 460 : (1993 AIR SCW 3765), that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable. The High Court, committed an error of law in recording a finding that the presumption would arise only if the factum of marriage is proved. We are afraid if factum of marriage is proved, the question of raising presumption does not arise. The lower appellate Court on the other hand has merely entered into the arena of conjecture and surmises by interfering with the finding of the trial Judge without considering the relevant and material evidence on the point. In this view of the matter findings arrived at by the lower appellate Court as well as by the High Court on the question of relationship of Panditrao and Shevantabai cannot be sustained in law. In our considered opinion a legal presumption arises on the admitted fact that they were living together as husband and wife and the said presumption has not been rebutted. We would accordingly set aside the findings of the High Court as well as the findings of the Additional District Judge on this score and restore the finding of the trial Judge on this core and hold that Shevantabai was the wife of Panditrao and
-13- (C.R. No.53 /2008) plaintiffs having been begotten by Shevantabai from Panditrao are the legal heirs over the property of Panditrao and would succeed to the said property."
26. In State of Haryana and Ors. v. M. P. Mohla ((2007) 1 SCC 457 the Apex Court stated :
"25. The law as regards the effect of an admission is also no longer res integra. Whereas a party may not be permitted to resile from his admission at a subsequent stage of the same proceedings, it is also trite that an admission made contrary to law shall not be binding on the State."
The Apex Court held that an admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore. The Apex Court further held that thing admitted in view of Section 58 of the Indian Evidence Act need not be proved and opined that :
"15. ........... Order VIII Rule 5 of the Code of Civil Procedure provides that even a vague or evasive denial may be treated to be an admission in which event the Court may pass a decree in favour of the plaintiff. Relying on or on the basis thereof a suit, having regard to the provisions of Order XII Rule 6 of the Code of Civil Procedure may also be decreed on admission. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistaken belief or to clarify one' stand inter alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile therefrom.
The decisions of this Court unfortunately in this regard had not been uniform. We would notice a few of them."
27. In the case of Tulsa and others v. Durghatiya and others (supra), the Apex Court held that the Court may 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
-14- (C.R. No.53 /2008) be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case. The continuous cohabitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. 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 concubinage. The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years. It was held that such presumption could be drawn under Section 114 of the Evidence Act.
28. In the case of Challamma vs. Tilaga and others (supra), the core question was as to whether first respondent (Tilaga) married to the deceased or not. A large number of witnesses were examined by the respondents in support of their contention that the first respondent was married to the deceased. A large number of documents including photographs showing performance of marriage ceremony were also filed. It was urged that keeping in view the provisions of the Hindu Marriage Act, 1955, it was obligatory on the part of the first respondent to establish that all the ingredients of a valid marriage were proved. In this case also the deceased while applying for the employment showed her status as single, but a specific finding of fact had been arrived at by the Courts below that all the subsequent documents clearly showed that not only the deceased married the first respondent but he also sought for allotment of quarter as a married person and one witness in his statement has deposed that in terms of the rule for allotment of quarter by the Company, quarters were allotted to married persons only and clubbed accommodation was provided to the bachelors. On the basis of these
-15- (C.R. No.53 /2008) evidence, the Apex Court held that 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. The Apex Court further held that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case and observed the following in para 10 which reads as under :-
"10. It is beyond any cavil of doubt that in determining the question of valid marriage, the conduct of the deceased in a case of this nature could 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 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."
29. It is well settled that a presumption of a valid marriage although is a rebuttable one, it is for the other party to establish the same. Such a presumption can be validly raised having regard to Section 50 of the Evidence Act. A heavy burden, thus, lies on the person who seeks to prove that no marriage has taken place.
30. Proceedings initiated under the provisions Indian Succession Act, 1925 is a summary proceeding. The grant of certificate under it is only a determination of prima facie title. It is not a final decision between the parties. Mere grant of succession certificate or decision in such proceedings would constitute to be a decision on an issue finally decided between the parties. Any decision made under Part-X of the Indian Succession Act, 1925 upon any question of right between the parties shall not bar the control of the same question in any suit or other proceedings between the same parties. Nothing in this para shall be construed to effect the eligibility of any person who may receive the whole or any part of any debts or security to account therefor to the person lawfully entitled thereto. Thus, any adjudication made under Part-X of the Indian Succession Act, 1925 does not bar the same question being
-16- (C.R. No.53 /2008) raised between the same parties in any subsequent suit or proceedings.
31. The enquiry in proceedings for grant of succession certificate is to be summary, and the court, without determining questions of law or fact, which seems to it to be too intricate and difficult for determination, should grant the certificate to the person who appears to have prima facie the best title thereto. In such cases the court has not to determine definitely and finally as to who has the best right to the estate. All that it is required to do is to hold a summary enquiry into the right to the certificate, with a view, on the one hand, to facilitate the collection of debts due to the deceased and prevent there being time-barred, owing to dispute between the heirs inter se as to their preferential right to succession, and, on the other hand, to afford protection to the debtors by appointing a representative of the deceased and authorizing him to give a valid discharge for the debts.
32. Thus according to Section 387 of the Act decision of the succession Court in the matter of succession certificate is in no way final or binding between the parties. In Indramani v. Hema Dibya (AIR 1977 Orissa 88) it has been held that Section 387 enables an unsuccessful party to a proceeding for succession certificate to file a regular suit in a competent Civil Court on the same question, and so the decision of that Court on that matter may ultimately affect the succession certificate already granted in favour of some other person. The order issuing the succession certificate is final so far as it relates to a proceeding under the Succession Act and regarding matters under that Act, but because of the provisions of S. 387, the said order can be questioned by a suit in a competent Civil Court. A Division Bench of this Court in Savitri Devi v. Smt. Manorama Bai, 1998 (1) MPLJ 254 : (AIR 1998 MP
114) has also taken the view that a separate suit is maintainable for challenging the succession certificate. Section 387 of the Act enables the unsuccessful party to file such a suit.
33. In the present case, it was found by the courts below that applicant and
-17- (C.R. No.53 /2008) Basanti Tiwari lived together for long years as husband and wife and this fact is not disputed by any of the parties. Therefore, the mere fact that though they were in Government service and did not disclose the factum of their marriage in the Government records or she during her life time though lived with the applicant but never nominated him as his legal nominee in the service record would not destroy the presumption of marriage. The Trial Court as well as the appellate court found that the applicant and Basanti Tiwari having lived together as husband and wife since 1981 till she died in vehicular accident on 11.4.2005, a presumption arose in law that they were husband and wife. The arguments of learned counsel for the non-applicants No.1 and 2 that even if it is presumed that Basanti Tiwari was living with the applicant since 1981, then why they have not disclosed their marriage in their service record and why the deceased did not nominate her husband to receive the amount which are lying in various shapes as FDR, Kisan Vikas Patra, Mutual Funds, Bonds etc.
34. The Apex Court in the case of Madhvi Amma Bhawani Amma and others V. Kunjikutty Pillai Meenakshi Pillai and others (supra) held that the decision in a proceeding for grant of succession certificate is not final as regard to their relationship and can be agitated in appropriate forum.
35. The non-applicants No.1 and 2 during the course of arguments also pointed out that they after rejection of the application of the applicant filed an application for grant of succession certificate which is pending before the Trial Court. In succession proceedings the court has to simply see which is the best man to collect the estate of the deceased. The certificate does not confer any title upon a person but only enable him to receive the amount on behalf of the deceased as her agent subject to finality of the right between the parties. From the evidence on record, the applicant is the person lawfully entitled to collect the estate of the deceased.
36. For these reasons, the impugned orders are liable to be set aside and are accordingly set aside. It is directed that the succession certificate be
-18- (C.R. No.53 /2008) issued in favour of the petitioner on payment of the necessary charges/ court fee etc. as per the provisions of Indian Succession Act, 1925 to collect the estate of the deceased - Basanti Tiwari.
37. In the result, the revision is allowed to the extent as indicated herein above but without any order as to costs.
(P.K.Jaiswal) Judge