Kerala High Court
Rajeshbabu vs Muralikrishanan on 28 July, 2025
RFA 59/2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 28TH DAY OF JULY 2025 / 6TH SRAVANA, 1947
RFA NO. 59 OF 2014
OS NO.232 OF 2011 OF SUB COURT, CHERTHALA
APPELLANT/DEFENDANT
RAJESHBABU, S/O.RAJENDRAN, AMBALAMADATHIL, AROOR MURI,
AROOR VILLAGE, CHERTHALA, ALAPUZHA DIST.
BY ADVS.
SHRI.O.RAMACHANDRAN NAMBIAR
SRI.UNNIKRISHNAN.V.ALAPATT
RESPONDENTS/PLAINTIFFS
1 MURALIKRISHANAN, S/O.LATE MAYADEVI, VARIYATH VELIYIL,
ERAMALLOOR MURI, EZHUPUNNA VILLAGE, ALAPPUZHA DIST.
2 SWATHI KRISHNAN, S/O.(LATE) MAYADEVI, VARIYATH VELIYIL,
ERAMALLOOR MURI, EZHUPUNNA VILLAGE, ALAPPUZHA DIST, PIN-
688532
ADDL.3 V.K.KANAKAM, W/O RAJENDRAN KAMPAKKARAN, AMBALAMADATHIL,
AROOR MURI, AROOR VILLAGE, ALAPUZHA DISTRICT
[Impleaded as additional R3 as per order dated 13.7.2015
in IA 1345/15]
BY ADVS.
SRI.K.S.PRENJITH KUMAR
SRI.CIBI THOMAS
SMT.BEA MARY BENNY
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON ON
17.7.2025, THE COURT ON 28.07.2025 DELIVERED THE FOLLOWING:
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C.R.
JUDGMENT
Dated : 28th July, 2025
The defendant in O.S.232/2011 on the file of the Sub Court, Cherthala is the
appellant. (For the purpose of convenience , the parties are hereafter referred to as per
their rank before the trial court).
2. The plaintiffs filed the suit for realisation of money from the defendant.
As per the plaint averments, the plaintiffs are the children of late Mayadevi who died
on 22.7.2011. The defendant is the brother of deceased Mayadevi. According to the
plaintiffs, the deceased Mayadevi deposited a sum of Rs.8,00,000/- in State Bank of
Travancore, Aroor branch and made the defendant as her nominee. After the death of
Mayadevi, the defendant instead of disbursing the amount to the legal representatives
of Mayadevi, namely the plaintiffs, attempted to appropriate the said amount.
Therefore, to recover the said amount they preferred the suit.
3. In the written statement filed by the defendant, he admitted that
Mayadevi deposited a sum of Rs.8,00,000/- in the bank and that he was made as
nominee. However, according to him, the plaintiffs are not the children of Mayadevi.
It is contended that the plaintiffs and Mayadevi had no relationship with each other
and therefore, he prayed for dismissing the suit.
4. The evidence in the case consists of the oral testimonies of PWs1 to 5
and DWs1 and 2, Exts.A1 to A14, B1, B2, X1, X1(a), X1(b) and X2. After evaluating
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the evidence on record, the trial court decreed the suit. Being aggrieved by the above
judgment and decree of the trial court, the defendant preferred this appeal.
5. Now the points that arise for consideration are the following :
i. Whether the plaintiffs are the children born to deceased Mayadevi ?
ii).Whether a nominee can appropriate the amount deposited in fixed deposit ?
iii).Whether the impugned judgment and decree of the trial court calls for any
interference, in the light of the grounds raised in the appeal?
6. Heard Sri.O.Ramachandran Nambiar, the learned counsel for the
appellant and Sri.Cibi Thomas, the learned counsel for the respondents/plaintiffs.
7. Admittedly, the deceased K.Mayadevi had deposited a sum of
Rs.8,00,000/- in the SBT, Aroor branch and she had nominated her brother namely the
defendant as her nominee. It is also admitted that Mayadevi died on 22.7.2011.
According to the plaintiffs, they are the children born to Mayadevi in one Vijayan and
as such they are the legal representatives of Mayadevi and are entitled to receive the
amount deposited in the bank. The defendant would contend that the plaintiffs are not
the children of Mayadevi.
8. The contention taken by the learned counsel for the appellant/defendant
at the time arguments is that Mayadevi referred to by the plaintiffs as their mother is
not the sister of the appellant. In order to substantiate the case, the 1 st plaintiff was
examined as PW1. He would depose that Mayadevi is his mother and the name of his
father is Vijayan. The said Vijayan was examined as PW3. PW3 also categorically
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deposed that Mayadevi was his wife and that the plaintiffs are the children born to
them. According to him, their marriage was solemnized at Guruvayoor Temple on
10.7.1988 and thereafter on 13.7.1998 they have executed Ext.A5 marriage deed and
got it registered before the Sub Registry, Mararikulam. The learned counsel for the
appellant would argue that the marriage deed registered before the Sub Registry will
not create a valid marriage. It is true that a marriage deed executed between two
persons and registered before the Sub Registry will not by itself create a valid
marriage. On the other hand, from the evidence of PW1, it is revealed that PW3
married Mayadevi at Guruvayoor Temple as per the religious rites and ceremonies.
9. It was argued that in the plaint there is no such pleading regarding the
conduct of a customary marriage. In this context it is to be noted that the plaintiffs
filed the suit for realisation of money and in the above circumstances, they were
justified in limiting the pleading that they are the children of Mayadevi and Vijayan.
It was only in the written statement filed by the defendant a contention disputing the
maternity of the plaintiffs was raised. In the above circumstances, the absence of
detailed pleading regarding the customary form of marriage conducted between
Mayadevi and Vijayan is not fatal, in the facts of this case.
10. Exts.A6 and A7 are the birth certificates of plaintiffs 1 and 2 in which
the name of the mother of plaintiffs 1 and 2 is shown as Maya @ Mayadevi and the
name of father is shown as Vijayan. Since the defendant has taken a contention that
the name of Mayadevi appearing in Exts.A6 and A7 is not the sister of the defendant,
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the plaintiffs have relied upon Ext.A8 election identity card of Mayadevi as well as
Ext.A9 a news report regarding the death of Mayadevi appeared in a newspaper.
Ext.A8 election identity card of Mayadevi was not disputed. Ext.A9 newspaper report
is also not disputed by the defendant. The plaintiffs also examined one of their
neighbours as PW5. PW5 in categorical terms deposed that he is the neighbour of the
plaintiffs and that he know Mayadevi and Vijayan. According to him, Mayadevi and
Vijayan got married and they were living together as husband and wife for more than
15 years. He would also depose that plaintiffs 1 and 2 are the children born to
Mayadevi and Vijayan. He also identified the photograph of Mayadevi in Exts.A8 and
A9. Though PW5 was cross-examined in detail, nothing material could be brought
out to discredit his testimony that plaintiffs 1 and 2 are the children born to Mayadevi,
the sister of the defendant and Vijayan.
11. The plaintiffs further produced Exts.A10 and A11 SSLC certificates of
plaintiffs 1 and 2. In the said certificate also, the name of their parents are shown as
Mayadevi and Vijayan. It is true that full name of Mayadevi is not mentioned in
Exts.A10 and A11. However, from the evidence of PWs1 and 3 it is revealed that the
full name of the deceased was Mayadevi and she was also called as Maya. In Ext.A6
birth certificate her both names, namely Maya and Mayadevi, are also mentioned
which also would show that Maya and Mayadevi are one and the same person.
Further, from the evidence of PW5, the neighbour of the plaintiffs, it is revealed that
the photograph appeared in Exts.A8 andA9 is the same Mayadevi, the sister of the
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defendant, the mother of plaintiffs 1 and 2 and the wife of Vijayan. Therefore, in the
light of the evidence of PWs1, 3 and 5 and from Ext.A5 to A11 documents, it is
clearly revealed that the plaintiffs are the children born to Mayadevi and Vijayan.
12. Relying upon Section 16 of the Hindu Marriage Act, the learned counsel
for the appellant would argue that since Ext.A2 does not create valid marriage, it also
does not amount to a void or voidable marriage and as such, the plaintiffs are not
entitled to inherit Mayadevi. It is true that Ext.A5 marriage deed as such does not
create a valid marriage. It also true that they could not produce any documentary
evidence to prove the customary marriage held at Guruvayoor. But from the evidence
of PWs3 and 5 it is revealed that on 10.7.1998 they have undergone customary
marriage. Thereafter on 13.7.1998 they executed Ext.A5 marriage deed, which
corroborates the evidence regarding customary marriage on 10.7.1998. Further from
the evidence of PW5 it is revealed that PW3 and Mayadevi were living together as
husband and wife for more than 15 years and in that relationship plaintiffs 1 and 2
were born.
13. Relying upon the decision of a Division Bench of this Court in Chakki
v. Ayyappan, 1988 (1) KLT 556, the learned counsel would argue that a Hindu
marriage can be considered to be solemnized only if all the formalities necessary to
constitute a customary marriage of either party were shown to have been duly
performed. It was argued that in the absence of any evidence to prove invocation
before the sacred fire, Saptapadi, exchange of rings or tying of Thali etc., there can be
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no presumption of marriage between Mayadevi and PW3. He has also relied upon the
decision of the Hon’ble Supreme Court in Bhaurao Shankar Lokhande and
Another v. State of Maharashtra & Anr., AIR 1965 SC 1564 and Surjet Kaur v.
Garja Singh and Others, AIR 1994 SC 135. In the decision in Bhaurao Shankar
Lokhande (supra), the accused was tried for an offence punishable under Section 494
of IPC and it was in the above context the Apex Court held that there should be a
valid marriage for finding the accused guilty under Section 494 of IPC. In the
decision in Surjet Kaur (supra), it was held that a man and a woman living as
husband and wife does not give them the status of husband and wife, if it is during the
life time of the husband or wife of the person marrying arises. In the instant case, the
defendant has no case that either Mayadevi or PW3 were already married when they
married each other and started residing together as husband and wife. From the
evidence it is revealed that their marital relationship got strained and thereafter PW3
married another lady. However, while they married each other and were living
together as husband and wife, both of them were competent to marry and as such, the
decision in Surjit Kaur (supra) does not apply to the facts of this case.
14. In the decision in Tulsa and Others v. Durghatiya and Others, (2008)
4 SCC 520, relied upon by the learned counsel for the plaintiff, the Apex court held
that if there is continuous living together between a man and a woman and there is
evidence to establish the said fact, the marriage can be presumed from the common
course of natural events and the conduct of parties. In paragraph 9, the court held as
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follows:
“……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.
15. In the decision in Kattukandi Edathil Krishnan and Others v.
Kattukandi Edathil Valsan and Others, (2022) 16 SCC 71, there was evidence to
show long duration of cohabitation between a man and a woman as husband and wife.
Since the defendant failed to rebut the presumption in favour of the parties of the
marriage on account of their long cohabitation, it was held that there was presumption
of a valid marriage between them.
16. In the decision in Shiramabai W/o Pundalik Bhave & Ors. v.
Captain, Record Officer for O.I.C, AIR 2023 SC 3920 also the Apex court held
that, when there is long cohabitation between a man and woman a presumption of
valid marriage between them can be drawn. It was also held that, the said
presumption is a rebuttable one and that the burden in heavily on the person who
denies such a marriage. In paragraphs 11,16 and 20 the Apex Court held that :
“11. It is no longer res integra that if a man and woman cohabit as
husband and wife for a long duration, one can draw a presumption in their
favour that they were living together as a consequence of a valid
marriage. This presumption can be drawn under Section 114 of the
Evidence Act”
16.”It is true that there would be a presumption in favour of the wedlock if
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the partners lived together for a long spell as husband and wife, but, the
said presumption is rebuttable though heavy onus is placed on the one who
seeks to deprive the relationship of its legal origin to prove that no
marriage had taken place.”
20.”It can be discerned from the aforesaid line of decisions that the law
infers a presumption in favour of a marriage when a man and woman have
continuously cohabitated for a long spell. No doubt, the said presumption
is rebuttable and can be rebutted by leading unimpeachable evidence.
When there is any circumstance that weakens such a presumption, courts
ought not to ignore the same. The burden lies heavily on the party who
seeks to question the cohabitation and to deprive the relationship of a
legal sanctity. ”
17. Therefore, the law is well settled that if there is long cohabitation
between a man and woman, the law presumes a valid marriage between them. In this
case from the evidence of PWs 3 and 5 it is revealed that PW3 and late Mayadevi
lived together as husband and wife for more than 15 years and Ext.A5 further
substantiates the above conclusion. In this case, there is no reliable evidence from the
side of the defendant to rebut the presumption of valid marriage on account of the
long cohabitation between Mayadevi and PW3. The plaintiffs are the children born to
them in that relationship. PW3 is not raising any claim over the said amount. In the
above circumstances, the trial court was justified in finding that plaintiffs 1 and 2 are
the legal representatives of deceased Mayadevi.
18. The law is well settled that a nominee is only a trustee of the legal
representatives and his duty is to collect the amount and disburse the same to the legal
representatives of the deceased and he cannot appropriate the amount as if it is his
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own. In the decision in Smt. Sarabati Devi and Ors. v. Usha Devi, AIR 1984 SC
346, in paragraph 12, the Apex Court held :
“12. Moreover there is one other strong circumstance in this case which
dissuades us from taking a view contrary to the decisions of all other High
Courts and accepting the view expressed by the Delhi High Court in the two
recent judgments delivered in the year 1978 and in the year 1982. The Act
has been in force from the year 1938 and all along almost all the High Courts
in India have taken the view that a mere nomination effected Under Section
39 does not deprive the heirs of their rights in the amount payable under a
life insurance policy. Yet Parliament has not chosen to make any amendment
to the Act. In such a situation unless there are strong and compelling reasons
to hold that all these decisions are wholly erroneous, the Court should be
slow to take a different view. The reasons given by the Delhi High Court are
unconvincing. We, therefore, hold that the judgments of the Delhi High Court
in Fauja Singh‘s case (supra) and in Mrs. Uma Sehgal’s case (supra) do not
lay down the law correctly. They are, therefore, overruled. We approve the
views expressed by the other High Courts on the meaning of Section 39 of the
Act and hold that a mere nomination made Under Section 39 of the Act does
not have the effect of conferring on the nominee any beneficial interest in the
amount payable under the life insurance policy on the death of the assured.
The nomination only indicates the hand which is authorised to receive the
amount, on the payment of which the insurer gets a valid discharge of its
liability under the policy, The amount; however, can be claimed by the heirs
of the assured in accordance with the law of succession governing them.”
19. In the decision in Vishin N. Kanchandani and Ors. v. Vidya
Lachmandas Khanchandani and Ors., AIR 2000 SC 2747, in paragraph 12 the
Apex Court held that-
“Any amount paid to the nominee after valid deductions or becomes the
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estate of the deceased. Such an estate devolves upon all persons who are
entitled to succession under law, custom or testament of the deceased holder.
In other words, the law laid down by this Court in Sarbati Devi‘s case holds
field and is equally applicable to the nominee becoming entitled to the
payment of the amount on account of national savings certificates received
by him under Section 6 read with Section 7 of the Act who in turn is liable to
return the amount to those, in whose favour law creates beneficial interest,
subject to the provisions of sub-section (2) of Section 8 of the Act. “
20. In the decision in Ram Chander Talwar and Ors, v. Devender
Kumar Talwar and Ors., (2010) 10 SCC 671 with regard to the scope of Section
45ZA of the Banking Regulation Act, the Apex Court held in paragraph 5 that :
“Section 45ZA(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 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. ”
21. In Shakti Yezdani and Ors. v. Jayanand Jayant Salgaonkar and Ors,
(2024) 4 SCC 642, with regard to the rights of a nominee, the Apex Court after
relying upon the decisions in Smt. Sarabati Devi (supra), Vishin N. Kanchandani
(supra) and Ram Chander Talwar (supra) held in paragraph 26 that :-
“26. A consistent view appears to have been taken by the courts, while
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interpreting the related provisions of nomination under different statutes. It is
clear from the referred judgments that the nomination so made would not lead
to the nominee attaining absolute title over the subject property for which
such nomination was made. In other words, the usual mode of succession is
not to be impacted by such nomination. The legal heirs therefore have not
been excluded by virtue of nomination.”
22. Since I have already found that the plaintiffs 1 and 2 are the children of
late Mayadevi and the defendant is only her brother, the plaintiffs are her natural heirs
and as such they are the legal representatives of the deceased. In the above
circumstances, the defendant being only a nominee is liable to disburse the amount
received from the bank, to the plaintiffs. Having not done so, the trial court was
justified in decreeing the suit. Therefore, I do not find any illegality or irregularity in
the impugned judgment decreed passed by the trial court so as to call for any
interference.
In the result, this appeal is dismissed. Considering the close relationship
between the parties, I order no costs.
All pending interlocutory applications will stand dismissed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/18.7.