Gauhati High Court
Intest.Cas./2/2021 on 18 August, 2025
GAHC010040012021
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
Intest Case No. 01/2021.
Smti. Ranu Senchowa,
D/o Late Khagendra Nath Senchowa,
R/o - Bishnu Nagar, Kadamoni,
P.O. & P.S. - Dibrugarh,
Dist. - Dibrugarh, PIN - 786001.
...... Petitioner.
-Versus-
1. Smti. Monalisha Senchowa,
W/o Late Kalyan Senchowa,
R/o Padum Nagar, Bye Lane-3,
P.O. & P.S. - Dibrugarh,
Dist. - Dibrugarh, PIN - 786001.
2. Sri Rahul Senchowa,
S/o Smti. Monalisha Senchowa,
R/o Padum Nagar, Bye Lane-3,
P.O. & P.S. - Dibrugarh,
Dist. - Dibrugarh, PIN - 786001.
3. Sri Monoranjan Senchowa,
S/o Smti. Monalisha Senchowa,
R/o Padum Nagar, Bye Lane-3,
P.O. & P.S. - Dibrugarh,
Dist. - Dibrugarh, PIN - 786001.
......Respondents.
Intest Case No. 02/2021.
Smti. Ranu Senchowa,
D/o Late Khagendra Nath Senchowa,
Page 1 of 25
R/o - Bishnu Nagar, Kadamoni,
P.O. & P.S. - Dibrugarh,
Dist. - Dibrugarh, PIN - 786001.
...... Petitioner.
-Versus-
1. Smti. Monalisha Senchowa,
W/o Late Kalyan Senchowa,
R/o Padum Nagar, Bye Lane-3,
P.O. & P.S. - Dibrugarh,
Dist. - Dibrugarh, PIN - 786001.
2. Sri Rahul Senchowa,
S/o Smti. Monalisha Senchowa,
R/o Padum Nagar, Bye Lane-3,
P.O. & P.S. - Dibrugarh,
Dist. - Dibrugarh, PIN - 786001.
3. Sri Monoranjan Senchowa,
S/o Smti. Monalisha Senchowa,
R/o Padum Nagar, Bye Lane-3,
P.O. & P.S. - Dibrugarh,
Dist. - Dibrugarh, PIN - 786001.
...... Respondents.
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the petitioner in both the cases :- Mr. H.P. Guwala.
Advocate for the respondents in Intest Case No. 01/2021 :- Ms. R.B. Bora,
Legal Aid Counsel.
Advocate for the respondents in Intest Case No. 02/2021 :- Mr. K.R. Baruah.
Date of Hearing :- 22.07.2025.
Date of Judgment & Order :- 18.08.2025.
Page 2 of 25
JUDGEMENT & ORDER (CAV)
Heard Mr. H.P. Guwala, learned counsel for the petitioner in
both the cases. Also heard Ms. R.B. Bora, learned Legal Aid Counsel
for the respondents in Intest Case No. 01/2021 and Mr. K.R. Baruah,
learned counsel for the respondents in Intest Case No. 02/2021.
2. In these cases, under Section 384 of the Indian Succession Act,
1925, the petitioner has challenged the common judgment and order
dated 18.01.2021, passed by the learned Additional District Judge,
Dibrugarh (trial court hereinafter), in Misc. (Succession) Case No.
104/2013 and in Misc. (Succession) Case No. 90/2013.
3. It is to be noted here that vide impugned judgment and order
dated 18.01.2021, the learned trial Court had dismissed the Misc.
(Succession) Case No. 104/2013 and allowed the Misc. (Succession)
Case No. 90/2013.
4. As Intest Case Nos. 01/2021, and 02/2021, are arisen out of
the same common judgment and order, dated 18.01.2021, passed
by the learned trial Court, in Misc. (Succession) Case Nos. 104/2013,
and Misc. (Succession) Case Nos. 90/2013, and as the subject
matters of both the cases are same, being debts and securities of
Late Kalyan Senchowa, and as the parties are also same, it is
proposed to dispose of both the Intest cases, by this common
judgment and order.
Background Facts:-
Page 3 of 25
5. The Misc. (Succession) Case No. 104/2013, earlier Misc. (Succession) Case No. 124/2011, was filed on 08.07.2011, and the same was registered on the basis of one petition filed under Section 372 of the Indian Succession Act, 1925, in respect of the debts and securities left behind by Late Kalyan Senchowa (deceased), by the petitioners (1) Smti. Anu Singh (married sister); (2) Smti. Ranu Senchowa (unmarried sister); (3) Sri Jan Senchowa (brother); and (4) Sri Dhan Senchowa (brother). The debts and securities left behind by Late Kalyan Senchowa, Ex-Technician, GR- T/SSE/PTG/DBWS, T/No. 1035 Painting Shop, are Provident Fund of Rs. 93,932/-; Group Insurance Rs. 40,943/-; Leave Salary Rs. 22,656/-; and Death cum Retirement Gratuity Rs. 3,57,560/-, altogether a sum of Rs. 5,15,091/- as mentioned in the Schedule of the petition.
5.1. And the Misc. (Succession) Case No. 90/2013, earlier Misc. (Succession) Case No. 87/2011, was filed on 21.05.2011, under Section 372 of the Indian Succession Act, 1925, in respect of the estate of the deceased Late Kalyan Senchowa, by the Petitioners (1) Smti. Monalisha Senchowa (wife); (2) Sri Rahul Senchowa (minor son); and (3) Sri Monoranjan Senchowa (minor son). Being the minor, the petitioners Nos. 2 & 3 were represented by the petitioner No. 1. The debts and securities left behind by the deceased, who worked in the Office of the Chief Mechanical Works Manager, N.F. Rallway, Dibrugarh, being his PF, Gratuity, Leave Salary, Insurance, etc. amounting to Rs. 5,14,531/-, as mentioned in the Schedule of the petition.
5.2. In Misc. (Succession) Case No. 104/2013, Smti. Monalisha Senchowa, being the opposite party, had filed her written objection Page 4 of 25 denying the claim of the petitioners and pleaded her case as set forth in her Misc. (Succession) Case No. 90/2013. Similarly, in Misc. (Succession) Case No. 90/2013, Smti. Ranu Senchowa, Smti. Anu Singh, Sri Dhan Senchowa and Sri Jan Senchowa, being the opposite parties had filed their written objection denying the claims of the petitioners and pleaded their case as set forth in Misc. (Succession) Case No. 104/2013. They also stated that the petitioner No. 1, Smti. Monalisha Senchowa and her two minor sons are not the legal heirs of the deceased and that their names were also not recorded in the Service Book of the deceased with N.F. Railway, Dibrugarh, wherein the deceased was working. They had also claimed that they have learnt on enquiry that Smti. Monalisha Senchowa is married to one Sri Kusum Das and out of their wedlock, two male children were born. They further claimed that at the time of his death, deceased Kalyan Senchowa was residing at his parental house at Kodomoni, Bishnu Nagar, Dibrugarh Town along with his unmarried sister Smti. Ranu Senchowa and his Shardha ceremony was solemnized at his parental house and Smti. Monalisha Senchowa never came to the parental house of the deceased at the time of his death and also at the Shardha ceremony.
5.3. Notably, during the pendency of both the Misc. (Succession) cases, Sri Dhan Senchowa and the opposite party No. 3 in Misc. (Succession) Case No. 90/2013, died on 21.01.2016. Therefore, as per written prayer made by Smti. Anu Singh and Smti. Ranu Senchowa in both the cases, the name of Sri Dhan Senchowa was struck off from both the cases.
5.4. During trial, both the parties had adduced their evidence and exhibited some documents. And thereafter, hearing both the parties, Page 5 of 25 the learned trial Court had arrived at a finding that Smti. Monalisha Senchowa and her sons, the petitioners in Misc. (Succession) Case No. 90/2013, are entitled for the debts and securities left behind by deceased Kalyan Senchowa, being his wife and sons.
Grounds:-
6. Being aggrieved and dissatisfied, the petitioner has preferred the present cases, on the following grounds :-
(i) That, the respondents did not adduce any evidence in respect of the claim made by the petitioner in Misc.
(Succession) Case No. 104/2013 filed by the petitioner for granting succession certificate in respect of the debts and securities left behind by Late Kalyan Senchowa, who expired on 15.01.2011, while working as Technician of N.F Railway, Dibrugarh and in absence of any evidence led by the respondents in the succession case filed by the petitioner, the evidence led by the PWs in the case remained uncontroverted and as such, the learned trial Court ought to have considered the evidence adduced by the petitioner and required to issue succession certificate in favour of the petitioner.
(ii) That, the petitioner (PW1) in Misc. (Succession) Case No. 104/2013 had exhibited death certificate of Late Kalyan Senchowa as Exhibit - 1, cremation certificate as Exhibit
- 2, the letter of the N.F Railway dated 05.05.2011, as Exhibit -5 along with evidence of 10 number of PWs for establishing that the deceased is the brother of the petitioner and he died unmarried and as such, granting Page 6 of 25 succession certificate in favour of the respondents is not justified.
(iii) That, all the PWs in Misc. (Succession) Case No. 104/2013 adduced evidence to the effect that Late Kalyan Senchowa died unmarried and the petitioner was residing with him at the time of death and the deceased expired at the paternal residence at Kodomoni, Bishnu Nagar, Dibrugarh Town and the death certificate also indicates that the address of the deceased as Kodomoni, Bishnu Nagar, Dibrugarh.
(iv) That, the Officer of N.F Railway, Dibrugarh, Sri Nitai Chandra Dey (PW10) adduced evidence and exhibited letter dated 05.05.2011, that from the record the petitioner and her sister and brother were found blood relatives of the deceased for settlement of dues as the deceased was a bachelor and had the deceased being married with the respondent No. 1, then he would have inserted the names of family members in the service declaration which is required to be given to the authority, every year, as per the Pension Rules of the N.F Railway, and since no such entrance was recorded, the claim of the respondents as wife and sons of the deceased is not tenable.
(v) That, the respondent No. 1 could not establish the relation with the deceased as husband and wife with any documentary evidence, except the oral evidence of PWs in Misc. (Succession) Case No. 90/2013. Moreover, the Page 7 of 25 PWs in Misc. (Succession) Case No. 90/2013, filed by the respondents are all relatives of the respondents and the PW8, PW9, PW10 & PW11 are closed relatives of the respondents which is reflected at page 14 of the judgment and therefore, on the basis of the relatives witness and also on the basis of the oral evidence of the respondents, the learned trial Court had declared that the respondent No. 1 is the legally married wife of the deceased and thereby, erred in both law and facts.
(vi) That, the proceeding under Part - X of the Indian Succession Act, 1925 is a summary procedure and in a summary procedure the issue as to whether the respondent No. 1 is the legally married wife of the deceased cannot be adjudicated, as the relationship of husband and wife could not be established by any document like marriage certificate, bank passbook, LIC policy, family declaration in service book, etc. and in absence of such evidence, the respondent No. 1 had failed to prima facie establish the relation of her with the deceased for granting succession certificate and as such, the learned trial Court had exceeded its jurisdiction, while granting succession certificate in favour of the respondents.
(vii) That, the respondents failed to bring Shri Pradip Gogoi for cross-examination, who accompanied the deceased at the time of marriage and as such, he is a material witness and withholding such a witness cause dent to the version of the respondents.
Page 8 of 25(viii) That, the learned trial Court had erred in law in declaring the respondent No. 1 as wife of the deceased in a proceeding under Section 372 of the Indian Succession Act, 1925 which is only a summary procedure.
(ix) That, while believing the oral evidence of PWs in Misc.
(Succession) Case No. 90/2013, the learned trial Court had failed to consider the evidence of the PWs in Misc. (Succession) Case No. 104/2013, wherein the petitioner had proved that the deceased was unmarried and therefore, he has not given any nomination in favour of the respondents.
(x) That, the petitioner (PW1) had categorically stated that the respondent No. 1 is the wife of another person, namely, Kusum Das and out of their wedlock the respondent Nos. 2 & 3 were born and since Kusum Das expired, he could not be examined as witness and to buttress such evidence, the respondents have not adduced any evidence before the learned trial Court.
(xi) That, the learned trial Court had relied on the principle of residing together as husband and wife, which was alleged to have been supported from the oral evidence of the PWs in Misc. (Succession) Case No. 90/2013 and most of them were relatives witness of each other and therefore, the evidence of the owner of rented premises, wherein the respondent stayed together with the deceased is the best piece of evidence to prove the question of living together, but, the respondents have Page 9 of 25 neither exhibited any rent agreement nor examined the owner of the rented premises as witness.
(xii) That, the respondent No. 1 could not establish that she stayed together with the deceased as husband and wife at the time of his death. Rather than, the petitioner had proved by the Death Certificate of Late Kalyan Senchowa (Exhibit - 1); Cremation Certificate (Exhibit - 2); Ration Card (Exhibit-4); and the letter of the N.F Railway, dated 05.05.2011 (Exhibit - 5) as well as the oral evidence of other PWs that she stayed all along with the deceased prior to his death.
6.1. Under such circumstances, it is contended to set aside the impugned judgment and order dated 18.01.2021, passed in Misc. (Succession) Case No. 104/2013 and in Misc. (Succession) Case No. 90/2013.
Submissions:-
7. Mr. Guwala, learned counsel for the petitioner in both the cases, referring to a decision of Hon'ble Supreme Court in the case of Balram Yadav vs. Fulmaniya Yadav, in Civil Appeal No. 4500/2016, arising out of SLP(C) No. 8076/2015, submits that in a proceeding under Section 372 of the Indian Succession Act, 1925 the court cannot go into the question of validity of marriage and matrimonial status of a person as the same falls within the exclusive jurisdiction of the Family Court, since under Section 8 of the Family Courts Act all the jurisdictions covered under Section 7 of the Family Courts Act are excluded from the purview of the jurisdiction of the Civil Courts and in the case where there is a dispute on the Page 10 of 25 matrimonial status of any person, a declaration with regard to the matrimonial status has to be sought only before the Family Court. But, in the present case, the learned trial Court had decided the matrimonial status of the respondent No. 1 as the legally married wife of the deceased and as such, the impugned judgment and order so passed by it suffers from manifest illegality and consequently, unsustainable in law and therefore, it is contended to allow these cases by setting aside the impugned judgment and order.
8. Per-contra, Ms. Bora, learned Legal Aid Counsel for the respondents in Intest Case No. 01/2021, submits that the impugned judgment and order so passed by the learned trial Court suffers from no infirmity or impropriety requiring any interference of this Court. Ms. Bora, further submits that the proceeding under Section 372 of the Indian Succession Act, 1925 is a summary proceeding and in order to adjudicate the claim, the learned trial Court had decided the issue that was raised before it and as such, there is no illegality. Therefore, Ms. Bora has contended to uphold the same.
9. On the otherhand, Mr. Baruah, learned counsel for the respondents in Intest Case No. 02/2021 has subscribed the submission of Ms. Bora, learned Legal Aid Counsel for the respondents in Intest Case No. 01/2021. Further, Mr. Baruah submits that the impugned judgment and order is a well written judgment and order and that the learned trial Court had discussed all the aspects of the matter and the same warrants no interference of this Court. Under such circumstances, Mr. Baruah has contended to dismiss the Intest Case No. 02/2021.
Page 11 of 25Finding of this Court :-
10. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the memo of appeal as well as the grounds mentioned therein and also gone through the impugned judgment and order, dated 18.01.2021, passed by the learned trial Court in Misc. (Succession) Case No. 104/2013 and in Misc. (Succession) Case No. 90/2013.
11. The law in respect of grant of succession certificate is provided in Part X of the Indian Succession Act, 1925, which inter alia provides that any person claiming himself to be the relative or legal heir of the deceased or any person having a prima facie beneficial interest in the 'debt or securities' of the deceased may apply to a competent court for the grant of a succession certificate. Upon receiving such application, the court is mandated to conduct an inquiry to ascertain the right of the applicant to the certificate. It is well settled that the enquiry in such proceeding is to be 'summary', and the court, without determining the questions of law or fact which seem to it to be too intricate and difficult to determine, should grant the certificate to the person who appears to have prima-facie the best title thereto.
11.1. The provision is to decide the application in a summary manner and the question to be decided is the right to the succession certificate. The enquiry contemplated under this chapter, in the case of rival claimants to the estate of the deceased person, is of a summary type and is not intended to lead any final adjudication. No doubt, some sort of inquiry would be essential to enable the court to grant a certificate, and though the inquiry is to be directed to find Page 12 of 25 out which of the rival claimants for the certificate is better suited for getting the certificate, that does not operate as a final adjudication with respect to the rival claims regarding the right to be debts in question, but operates only as a kind of makeshift or temporary arrangement enabling the grantee to realize the assets for the benefits of whosoever may ultimately be entitled thereto.
11.2. It is to be noted here that the object of issuing a succession certificate was dealt with by Hon'ble Supreme Court in the case of Banarsi Dass v. Teeku Dutta, reported in (2005) 4 SCC 449, as under:-
‚14. The main object of a succession certificate is to facilitate collection of debts on succession and afford protection to the parties paying debts to the representatives of deceased persons. All that the succession certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons. Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased. A succession certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a certificate under the Act, or is compelled by the decree of a court to pay it to the person, he is lawfully discharged. The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority Page 13 of 25 to collect his debts and allows the debtors to make payments to him without incurring any risk.
In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so choose, can also adduce evidence to oppose grant of succession certificate. The trial court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and DNA test was conclusive. This is not a correct view. It is for the parties to place evidence in support of their respective claims and establish their stands. ...............‛
12. In the instant case, in the impugned judgments and orders, the learned trial Court had observed that in a proceeding for granting succession certificate, the court is required to decide in a summary manner the right to the succession certificate, as provided in Sub- Section 1 of Section 373 of the Indian Succession Act and Sub- Section 3 of Section 373 of the Indian Succession Act, which lays down that if the Judge cannot decide the right to the certificate without determining the questions of law or fact which seems to be too intricate and difficult for determining in a summary proceeding, he may nevertheless grant a certificate to the applicant, if he appears to be the person having prima facie the best title thereto.
12.1. Further, the learned trial Court had observed that Section 387 of the Indian Succession Act also provides that no decision, under Part - X of the Indian Succession Act, upon any question of right between any parties shall be held to bar the trial of the same question in any suit or any other proceeding between the same Page 14 of 25 parties. Thereafter, keeping the above principles in mind, the learned trial Court had decided the right of the succession certificate in the said cases.
12.2. The learned trial Court had also held that if the application of Smti. Monalisha Senchowa and her minor sons, or the application of Smti. Ranu Senchowa and her siblings, are to be considered, the moot point to be determined, in order to arrive at a just decision, is to whether Smti. Monalisha Senchowa was the wife of Kalyan Senchowa (since deceased). If this question is answered in affirmative, the case of Smti. Ranu Senchowa and three others will fall apart and if this question is answered in negative, the case of Smti. Monalisha Senchowa will fall apart and it will automatically get established that Late Kalyan Senchowa died unmarried.
12.3. Then considering the evidence adduced by the petitioner in Misc. (Succession) Case No. 90/2013 and the Sections 50 & 114 of the Evidence Act, the learned trial Court had held that the relationship of a man and a woman as husband and wife can be presumed from their continuous cohabitation as husband and wife and their treatment, as such, for a long period of time, though such presumption is a rebuttable one. If a man and a woman live together for long years as husband and wife, then a presumption arises in law, though rebuttable, of the legality of marriage existing between the two. The act of marriage can be presumed from the common course of natural events and the conduct of the parties as they are borne out by the facts of each particular case and it is a settled law that the presumption is a rebuttable one, but a heavy burden lies on the person who questions the legality of the marriage.
Page 15 of 2512.4. Thereafter, considering the evidence of 11 numbers of witnesses examined by Smti. Monalisha Senchowa, the petitioner in Misc. (Succession) Case No. 90/2013, the learned trial Court had drawn a presumption in favour of the marriage between her with the deceased, Kalyan Senchowa. Further, the learned trial Court found that the testimonies of the PWs appear to be credible and worthy of reliance, though there are a few discrepancies here and there. Thereafter, the learned trial Court had held that it gets established from the totality of evidence adduced by the petitioners, Smti. Monalisha Senchowa and her minor sons that the marriage of Smti. Monalisha Senchowa and Kalyan Senchowa (since deceased) was solemnized in the year 2000 at Jokai Bon Koibortya Gaon and thereafter, they resided together as husband and wife in a rented house at Natun Nirmali Gaon, and thereafter, at Padum Nagar and from their wedlock, two sons were born, namely, Rahul Senchowa and Monoranjan Senchowa, the petitioner Nos. 2 & 3, respectively.
12.5. The learned trial Court also considered the evidence of Rahul Senchowa and Monoranjan Senchowa, and arrived at a finding that though Smti. Ranu Senchowa and her siblings have adduced evidence in both the Misc. (Succession) cases in order to prove their case or, in others words, to rebut the presumption of marriage between Smti. Monalisha Senchowa and Late Kalyan Senchowa, it remains to be seen from their evidence whether they have been able to do so or not, thereafter, relying upon a decision of the Hon'ble Supreme Court in the case of Tulsa and Others vs. Durghatiya and Others, reported in (2008) 4 SCC 520, the learned trial Court had held that a heavy burden lies on them to prove that there was Page 16 of 25 no marriage between Kalyan Senchowa (since deceased) and Smti. Monalisha Senchowa.
12.6. Thereafter, the learned trial Court arrived at a finding that Smti. Ranu Senchowa and her brothers and sisters have not been able to successfully rebut the presumption of marriage between Smti. Monalisha Senchowa and Late Kalyan Senchowa and that the mere factum of residing of deceased - Late Kalyan Senchowa with Smti. Ranu Senchowa (P.W.1), at the time of his death, at their parental abode at Kodomoni, Bishnu Nagar, Dibrugarh Town, cannot rule out the fact that Kalyan Senchowa had been married to Smti. Monalisha Senchowa and that both used to reside together as husband and wife in a rented house. Thereafter, the learned trial Court had decided that Smti. Monalisha Senchowa and her minor sons are entitled for succession certificate in respect of debts and securities left behind by deceased Kalyan Senchowa.
13. I have carefully gone through the finding so recorded by the learned trial Court in the light of the evidence brought on record both oral and documentary, and I find that the learned trial Court had rightly drawn the presumption of a valid marriage between the petitioner of Misc. (Succession) Case No. 90/2013 and had rightly decided that a heavy burden lies upon the opposite parties to prove that there was no marriage between Kalyan Senchowa (since deceased) and petitioner/respondent No. 1 herein, in view of the decision of Hon'ble Supreme Court in the case of Tulsa (Supra).
14. Though, Mr. Guwala, learned counsel for the petitioner vehemently submits that in view of the Section 8 of the Family Courts Act, wherein it is provided that all the jurisdictions covered Page 17 of 25 under Section 7 of the Family Courts Act are excluded from the purview of the jurisdiction of the Civil Courts and in the case where there is a dispute on the matrimonial status of any person, a declaration with regard to the matrimonial status has to be sought only before the Family Court, yet, the said submission of Mr. Guwala left this unimpressed.
14.1. It is to be noted here that in a proceeding under Section 373 of the Indian Succession Act for granting succession certificate, the court is required to decide the right of the parties seeking the succession certificate in view of the Sub-Section 1 of Section 373 of the Indian Succession Act. Though it is not possible to decide the right of the petitioner to the succession certificate without determining the question of law or facts, yet, the court may grant succession certificate to the applicant, if he appears to be the person having prima facie the best title thereto.
15. In that view of the matter, the learned trial Court is entitled to go into the question of both law and facts while determining the right of the parties seeking succession certificate. Thereafter, considering the evidence of both the parties, it had rightly arrived at the finding that the petitioner Monalisha Senchowa is the wife of deceased Kalyan Senchowa.
16. I have carefully gone through the decision of Balram (supra), referred by Mr. Guwala, learned counsel for the petitioner and I find that the said decision would not come into his assistance, inasmuch as in the case of Challamma vs. Tilaga and Others, reported in (2009) 9 SCC 299, Hon'ble Supreme Court had held that the court can go into the question of existence of a valid Page 18 of 25 marriage between the parties. In para No. 8 and 10, Hon'ble Supreme Court has held as under:-
‚8. 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 finding of fact indisputably the learned trial Judge was not only entitled to analyse 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 presumption of a valid marriage having regard to the fact that they had been residing together for a long time and have been accepted in the society as husband and wife, could also be drawn.‛ ‚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 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 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.
17. In the case of Tulsa (Supra), Hon'ble Supreme Court held as under:-
‚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 Page 19 of 25 common course of natural events, human conduct and private business. 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 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.
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 two persons living together. In first of them i.e. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy [AIR 1927 PC 185] Their Lordships of the Privy Council laid down the general proposition that: (AIR p. 187) '... 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.'
13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan [(1928-29) 56 IA 201 : AIR 1929 PC 135] Their Lordships of the Privy Council once again laid down that: (IA p. 207) 'The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years.' Page 20 of 25
14. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.‛
18. Further in the case of Challamma (supra), Hon'ble Supreme Court has held as under:-
12. It is also well settled that a presumption of a valid marriage although is a rebuttable one, it is for the other party to establish the same. (See Ranganath Parmeshwar Panditrao Moli vs. Eknath Gajanan Kulkarni (1996) 7 SCC 681, and Sobha Hymavathi Devi vs. Setti Gangadhara Swamy (2005) 2 SCC 244) Such a presumption can be validly raised having regard to Section 50 of the Evidence Act. (See Tulsa -
(2008) 4 SCC 520). A heavy burden, thus, lies on the person who seeks to prove that no marriage has taken place.
19. Thus, on the aforementioned premise, if the learned trial Court has arrived at a finding that the deceased had married the petitioner, in Misc. (Succession) Case No. 90/2013, Smti. Monalisha Senchowa, then no exception thereto can be taken. A careful perusal of the evidence adduced by the petitioners, Smti. Monalisha Senchowa and her witnesses that her marriage with Kalyan Senchowa (since deceased) was solemnized in the year 2000 at Jokai Bon Koibortya Gaon and thereafter, they resided together as husband and wife in a rented house at Milan Nagar and thereafter, at Padum Nagar and from their wedlock, two sons were born, namely, Rahul Senchowa and Monoranjan Senchowa, the petitioner Nos. 2 & 3, respectively. Though, the petitioner, in Misc. (Succession) Case No. 104/2013, Smti. Ranu Senchowa had adduced evidence of 10 witnesses and Page 21 of 25 also exhibited 6 documents, the same failed to outweigh evidence of the petitioner, in Misc. (Succession) Case No. 90/2013, Smti. Monalisha Senchowa, and her other witnesses and documents exhibited by her.
19.1. It is well settled 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 presumption under Section 50 of the Evidence Act, in view of the decision of Hon'ble Supreme Court in the case of Tulsa (supra) is available in all its plentitude and latitude. And Smti. Ranu Senchowa the petitioner in Misc. (succession) Case No. 104/2013, and her brothers and sisters have not been able to successfully rebut the presumption of marriage between Smti. Monalisha Senchowa and Late Kalyan Senchowa.
20. It is a fact that the name of the petitioner, in Misc. (Succession) Case No. 90/2013, Smti. Monalisha Senchowa, was not nominated in the service book of her deceased husband, Late Kalyan Senchowa. But, the significance of nominating a person has been dealt with by Hon'ble Supreme Court in the case of Ram Chander Talwar vs. Devender Kumar Talwar, reported in (2010) 10 SCC 671, as under:
‚5. Section 45-ZA(2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositor's account is concerned. But it by no stretch of imagination makes the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Page 22 of 25 Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. All the monies receivable by the nominee by virtue of Section 45-ZA(2) would, therefore, form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed.‛ 20.1. Again, in the case of Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani reported in (2000) 6 SCC 724, Hon'ble Supreme Court has laid down the law in the following terms:
‚10. ... The nomination only indicated the hand which was 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-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 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.‛ Page 23 of 25 20.2. Further, in the case of Sarbati Devi vs. Usha Devi, reported in (1984) 1 SCC 424, Hon'ble Supreme Court has held as under:-
‚4. At the outset it should be mentioned that except the decision of the Allahabad High Court in Kesari Devi v. Dharma Devi [AIR 1962 All 355] 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. Kuldip Singh [AIR 1978 Del 276] and Uma Sehgal v. Dwarka Dass Sehgal [AIR 1982 Del 36] in all other decisions cited before us the view taken is that 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 applicable to him.‛ 20.3. Thus, even though the name of the petitioner, in Misc.
(Succession) Case No. 90/2013, Smti. Monalisha Senchowa, was not nominated in the service book of her deceased husband, Late Kalyan Senchowa, yet in view of the ratio laid down in the case of Ram Chander Talwar (supra), the debt and securities left behind by Late Kalyan Senchowa will devolve according to the rule of succession to which the depositor may be governed.
21. It is well settled that while granting succession certificate, the Court is primarily concerned with the question as to who among the various applicants is the proper person to represent the estate of the deceased and collect the money. All other disputes have to be decided in appropriate proceedings. Grant of Succession Certificate Page 24 of 25 does not depend on the right of any claimant to the debt. The certificate does not recognise or invest in the grantee, title to the debt or property in the debt. It only enables him to collect the debt and give valid discharge to the creditor. If there be conflicting claims, they have to be settled in appropriate proceedings in accordance with the law.
22. In the case in hand the petitioner, in Misc. (Succession) Case No.90/2013, Smti. Monalisha Senchowa, has succeeded in establishing better interest in the debt and securities left behind by her deceased husband Late Kalyan Senchowa, than that the petitioner, in Misc. (Succession) Case No. 104/2013, Smti. Ranu Senchowa. Under such circumstances, it cannot be said that the learned trial Court had committed any manifest illegality or infirmity in deciding the petitions. And as such, the same warrants no interference of this Court.
23. In the result, I find no merit in both the cases. Accordingly, the same stands dismissed.
JUDGE Comparing Assistant Page 25 of 25