Gauhati High Court
Intest.Cas./1/2021 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 25
Finding 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 authorityPage 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 25
12.4. 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 toPage 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 BankingPage 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