Regular Second Appeal No.2944 of 2007 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: March 04, 2010 Renu Bala & another .....Appellants VERSUS Dharam Pal & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.Bhinderjit Singh, Advocate, for the appellants. Mr.S.K.Arora, Advocate, for respondent No.1. Ms.Jyoti Sareen, Advocate, for Mr.Renu Bala Sharma, Advocate, for respondent No.2. **** RANJIT SINGH, J. Greed seems to have overwhelmed all other values in life. Forgetting one's relationship and responsibility, brother of a deceased employee is in serious contest with the wife of his brother and a young girl child, who are fighting to get the family pension and other pensionary benefits essential for their survival in life. Regular Second Appeal No.2944 of 2007 (O&M) : 2 : Misfortune of the appellants did not end only with the death of husband/father, who was serving as Head Constable in Delhi Police and has continued even before the courts where technicalities have overweighed the human considerations. When appellant No.1 and her young minor daughter laid a claim for grant of family pension and other benefits on account of death of Thuru Ram, it met with serious resistance from her mother-in-law, who died fighting the cause, which was then taken over by her son and brother of the deceased employee. He has no concern for a hapless lady and a minor young child of his own brother and is fighting hard to get all the financial benefits due to death of his brother and is least bothered about the plight of his niece and sister-in-law (Bhabi). The parties were even summoned during the course of hearing before this court. Respondent No.1, who is impleaded as L.R of his mother, continued to show greedy side to cling to claims arising due to death of his brother and refused to share the same by way of a compromise. Appellant No.1 and her young daughter were agreeable to resolve the same amicably. Obviously need of the appellants was more pronounced, whereas the respondent-brother (substituted as legal heir for his mother) had only one aim, i.e., to grab this monetary windfall somehow the others. Negotiations having, thus, failed would necessitate this court to adjudicate the lis on merits. A few facts. Appellant No.1 married late Thuru Ram on 3.5.1995 according to Hindu Rites. Out of this wedlock, a female child, named, Mushkan was born on 12.12.1998. Thuru Ram was employed as Head Constable with Delhi Police. While serving at Police Station, Regular Second Appeal No.2944 of 2007 (O&M) : 3 : Mehrolly, Thuru Ram met with an accident while on duty and left for heavenly abroad, leaving behind appellants. The both were solely dependent upon Thuru Ram and were left with no source of income. It appears that her claim to family pension and other pensionary benefits faced resistance from close relatives of deceased employee, like his mother. The appellants accordingly had to file a suit seeking declaration that they alone are entitled to family pension and so also to compassionate appointment, gratuity and insurance amount in terms of the rule position. The appellants even were prepared to share equally with Vidya Devi, mother in-law of appellant No.1 some pensionary benefits. On being put to notice, respondent Nos.1 to 3 (official- respondents) filed a joint written statement admitting the death. In the reply, it is stated that Thuru Ram had nominated his father Karam Chand for death-cum-retirement gratuity and has also nominated his father and mother Vidya Devi as nominees for provident fund benefit and employees group insurance scheme. The details available with the official-respondents did not contain a mention to his marriage and as such they were not in any position to confirm the factum of marriage. The report submitted by SI R.N.Chaudhary on 7.11.2003, however, revealed that deceased Head Constable Thuru Ram had married appellant No.1 and had a daughter born out of this wedlock. Late Vidya Devi (defendant No.4) filed a separate written statement challenging the locus of the appellants to file this suit. The factum of marriage and the birth of a female child was denied. She claimed herself to be the sole claimant to the benefits following the death of her son Thuru Ram. The suit was tried on following issues Regular Second Appeal No.2944 of 2007 (O&M) : 4 : framed on the basis of pleadings:- “1. Whether the plaintiff is entitled to declaration as prayed for? OPP 2. Whether the plaintiff is entitled to mandatory injunction as prayed for? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiffs have no locus standi to file the present suit? OPD 5. Whether the suit is bad for non-joinder of necessary party? OPD 6. Relief. On the basis of evidence led and submissions made, the trial Court came to conclude that appellant No.1 had succeeded in proving to be legally married wife of late Thuru Ram and accordingly found issues No.1 and 2 in their favour. The appellants were accordingly held entitled to the grant of family pension and they alongwith respondent No.4, late mother-in-law, were held entitled to get gratuity and insurance amount in equal share. The greed appears to have again come into play for late Vidya, mother of the deceased, to appeal against this judgment. The appellate Court, however, reversed the finding primarily on the ground that the documents, which were relied upon by the appellants to prove marriage, had not been properly proved and, hence, suit was dismissed. The lady and a young child are, thus, before this court through this Regular Second Appeal. During the pendency of suit, Vidya Devi had died and appeal before the first appellate Court was prosecuted by her son Regular Second Appeal No.2944 of 2007 (O&M) : 5 : Dharam Pal as her legal heir. During the pendency of the Regular Second Appeal, the counsel for the appellants filed an application for leading additional evidence. This was a joint claim petition filed before the Motor Accident Claims Tribunal, Delhi where appellant No.1 alongwith her mother-in-law and father-in-law had filed a joint petition for claiming compensation on account of death of Thuru Ram. Prayer was to place on record the certified copy of the claim petition primarily to show that Vidya Devi by filing this joint petition had admitted the factum of marriage of appellant No.1 with late Thuru Ram. In fact, the minor daughter of Thuru Ram was also the joint claimant in this claim petition. This prayer was allowed on 2.12.2009 and accordingly the position that would emerge is that the private respondent had admitted the factum of marriage as would be revealed from their action in filing a joint petition seeking compensation. Accordingly, this court noticed in its order dated 8.1.2010 that this admission on the part of respondent could not be wished away. It was viewed that the denial of this marriage was only actuated for a consideration to usurp family pension and other pensionary benefits, which legally were due to the appellants. The parties in this background were summoned to appear before the court to see if the issues could be amicably settled. The parties appeared before the court on 3.3.2010. The young child, a minor daughter was also present before the court. The innocent and anxious look on the face of this young child present in the premises of the court in fact told and conveyed the miseries that this young child alongwith her mother perhaps was undergoing. This Regular Second Appeal No.2944 of 2007 (O&M) : 6 : anxiety and concern could be due to concern about the fate of this case or the environment in which she had been put in. However, there was no such emotion seen on the face of Dharam Pal, brother of the late deceased employee, who declined to accept a fair offer to leave the family pension for the appellants and to share the gratuity and insurance amount equally with them. Perhaps he thought that he has a judgment in his favour and would want to take everything. The negotiated settlement, thus, failed. It appears that Dharam Pal respondent is mis-informed about the sweep of the judicial intervention. Though there is sufficient material in the form of documentary evidence on record of the case to prove the marriage of appellant Renu Bala with Thuru Ram, which led to birth of a girl child, yet in my view, the joint claim petition filed by Vidya Devi and her husband to make a claim under Motor Vehicle Act would be a clincher and would show an admission on their part about the factum of this marriage. This joint application taken on record as additional evidence in the form of Ex.PP/1 would clearly show that appellant Renu Bala was described in the claim petition as wife of late Thuru Ram, whereas Ms.Mushkan was referred to as a daughter of Thuru Ram. Shri Karam Chand and Vidya Devi are the other two claimants, who had filed this joint petition with the appellants to make a claim on account of death of Thuru Ram. In the claim filed by Renu Bal, Karam Chand and Vidya Devi, it is clearly mentioned that Renu Bala (petitioner No.1) is the widow/wife of Thuru Ram and Mushkan (petitioner No.2) a minor daughter aged five years. To support the claim, it is averred in this petition that Mushkan, being minor daughter, had suffered due to loss of love and Regular Second Appeal No.2944 of 2007 (O&M) : 7 : affection of her father at the childhood stage, whereas Karam Chand and Vidya Devi had suffered due to love and affection of their son. They all had jointly engaged a counsel Narendra Narayan, as can be seen from the Vakalat jointly signed by all, which is on record. The claim petition is supported by an affidavit. Apart from this, there was a report given by Senior Superintendent of Police, Gurdaspur showing that late Thuru Ram had solemnized marriage with appellant No.1 and there was a baby girl aged five years living with her. In the school record, Mushkan was admitted as daughter of Thuru Ram and Renu Bala appellant. On the claim petition, photographs of Renu Bal appellant, Karam Chand and Vidya Devi are appearing. The admission of these documents were objected to. Even a ration card was placed on record where appellants were described as wife and daughter of late Thuru Ram. On this basis, the trial Court had decreed the suit. To my mind, the first appellate Court had not fully appreciated the factual position. The court had made reference to number of documents, which were much prior to the date of this marriage. The act of the deceased nominating his father relied upon by the appellate Court was dated 29.10.1981. The nomination of Vidya Devi and father regarding provident fund was done on 27.9.1986. The third nomination in favour of mother was also on 1.6.1990. The list of the family members was furnished on 1.10.1993. These would not mean much when viewed that the marriage took place on 3.5.1995 and the daughter was born on 12.12.1998. Accordingly, the mention made by deceased Thuru Ram to say Nil against the column of family members done on 1.10.1993 would not Regular Second Appeal No.2944 of 2007 (O&M) : 8 : mean much to see whether the marriage had taken place or not. The first appellate Court, I think, was too technical and gave undue weightage to the customs, which were required to be performed to prove the factum of marriage. No doubt, it has been viewed in some of the judgments that in the absence of any evidence regarding ceremonies having been performed, marriage cannot be proved, but the view taken by the first appellate Court that merely living as husband and wife would not confer a status of husband and wife on the couple may not reflect the correct legal position. In this regard, the counsel for the appellants has justifiably placed reliance on the case of Tulsa & Ors. Vs. Durghatiya & Ors., 2008(2) ICC 159. The Hon'ble Supreme Court has made reference to Section 114 of the Indian Evidence Act, which make a provision for Courts to draw presumption about the existence of any fact which it things likely to have happened, regard being had to the common course of natural events, human conduct and public and private business. Section 50 of the Indian Evidence Act can also be referred here. This section provides that when court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, or any person who, as a member of family or otherwise, has special means of knowledge on the subject, is a relevant fact. Ofcourse, such opinion is not to be taken sufficient to prove a marriage in proceedings under the Divorce Act or for prosecution under Sections 494, 495, 497 or 498-A IPC. Thus, the joint petition filed by the respondents before Motor Accident Claims Tribunal is a fact, which is relevant, where they had conceded the marriage of appellant No.1 with deceased Thuru Ram. Regular Second Appeal No.2944 of 2007 (O&M) : 9 : Relying on this provision, which gives rise to presumption, the court in Tulsa's case (supra) has held that an act of marriage can be presumed from the common course of natural events and conduct of parties as these are born out of the facts of a particular case. The Hon'ble Supreme Court thereafter has relied upon certain judicial precedents including that of Privy Council, which had considered the scope of presumption, which can be drawn as to the relationship of marriage between two persons living together. A reference is made to the case of A Dinohamy v. W.L.Blahamy, AIR 1927 P.C.185, where it is held as under:- “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 are living together in consequence of a valid marriage, and not in a stage of concubinage.” Reference can also be made to Mohabhat Ali v. Md.Ibrahim Khan, AIR 1929 P.C.135, where it is observed as under:- “The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.” In Badri Prasad v. Dy.Director of Consolidation and Ors., AIR 1978 SC 1557, it was observed that law leans in favour of legitimacy and frowns upon bastardy. It is accordingly observed that where the partners had lived together for long spell as husband and wife, there would be a presumption in favour of wedlock. Ofcourse, Regular Second Appeal No.2944 of 2007 (O&M) : 10 : this is a rebuttable presumption and burden would lie on the person, who seeks to deprive the relationship of legal origin and is a heavy burden to prove that no marriage took place. In Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, continuance co-habitation of a woman as husband and wife and their treatment as such for a number of years was said to give rise to presumption of marriage, ofcourse a rebuttable one. It is also observed that even if there are circumstances which weaken and destroy that presumption, the court cannot ignore them. In this background, the observations made by the first Appellate Court cannot be termed as sound in law. Mere nomination to receive insurance policy or for that matter being a nominee of a provident fund would not confer any rights on the person so nominated to receive the benefits or to become entitle to receive such amounts. In this regard, reference can be made to Smt.Sarbati Devi and another Vs. Smt.Usha Devi, AIR 1984 Supreme Court 346. The Hon'ble Supreme Court in this case has reversed the decision of the Allahabad High Court while interpreting Section 39 of the Insurance Act to say that nominee of a life insurance policy does not get absolute right to the amount due. The decision of the Delhi High Court reported as Fauja Singh v. Kuldip Singh, AIR 1978 Delhi 276 and Mrs.Uma Sehgal V. Dwarka Dass Sehgal , AIR 1982 Delhi 36 in this regard were also overruled. It is held that:- “A mere nomination made under Section 39 does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life Regular Second Appeal No.2944 of 2007 (O&M) : 11 : 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.” The technicalities, which had overweighed with the first Appellate Court, thus, in my view would pale before these admitted facts and, thus, the findings returned by the first appellate Court cannot be sustained. The substantial question of law as to whether the joint petition filed by the private defendants alongwith the appellants would amount to admission on their part about the factum of marriage of appellant No.1 with late Thuru Ram and would amount to sufficient proof of marriage when viewed in the background of other evidence available on the file, thus, would arise in this case. This question of law is answered in favour of the appellants and it is held that the appellants were able to establish this marriage on the basis of admission as well as on the basis of other evidence including the presumption that would arise in this case in terms of Section 114 when read with Section 50 of the Indian Evidence Act. The result is that the judgment of the first Appellate Court impugned in the Regular Second Appeal cannot be sustained and is accordingly set aside. The suit filed by the appellants would stand decreed. Since the appeal was prosecuted by brother of the Regular Second Appeal No.2944 of 2007 (O&M) : 12 : deceased employee after the death of his mother, he apparently is not entitled to receive any benefit due arising on account of either insurance, provident fund or family pension. Accordingly, while allowing the Regular Second Appeal, directions are issued that all the retiral benefits and the insurance amount and so too the amount lying in the provident fund be released to the appellants. The necessary decree in this regard be prepared by the Registry of this Court. March 04, 2010 ( RANJIT SINGH ) ramesh JUDGE