1. This is an appeal directed by the 1st defendant against the judgment and decree of the District Judge of Cuddapah decreeing a sum of Rs. 6092-9-0 in favour of the 3rd defendant. The first question, that arises for consideration in the appeal is whether, by reason of the fixed deposit being in the joint names of the 1st defendant and Dalavayi Ramaswami payable to either or survivor, the amount should be paid to the 1st defendant alone; and (2) whether the appellant 1st defendant is the legally wedded wife of Dalavayi Ramaswami and is entitled to a share in the fixed deposit amount kept with the State Bank of India, Cuddapah.
2. So far as the first question is concerned, there is no doubt that the fixed deposit receipt marked as Exhibit A-l is in the joint names of Mr. Dalavayi Ramaswamy and Mrs. Dalavayi Nagarajamma payable to either Or survivor. A sum of Rs. 4000/- was borrowed by the parties and the balance that is payable is only Rs. 6092-7-0. The contention of the learned Advocate General on behalf of the appellant is that inasmuch as the sum is payable to either or survivor, the appellant is entitled to the fixed deposit amount on the death of Dalavayi Ramaswami.
It was contended that a presumption ot gilt in favour of Dalavayi Nagarajamma should have been raised on the particular facts of the case, The learned Advocate General further argued that even if it is proved that Dalavayi Nagarajamma was not the lawfully wedded wife, it must be held that Dalavayi Ramaswami intended to make a gilt ot the sum of Rs. 10,000/- in favour of his mistress, the appellant. There is no substance in this contention,
3. The identical question came up lor decision before the Privy Council in Guran Ditta v. Ram Ditta, ILR 55 Cal 944 at p. 950; (AIR 1928 PC 172 at p. 173). The deposit that was made in the case was in the joint names of the husband and wife and the condition was that the amount was to be payable to either or the survivor. Lord Far-moor, delivering the judgment of the Privy Council, laid down the law in the following terms;
''The general principle of equity, applicable both in this country and in India is that in the case of voluntary conveyance of property by a grantor, without any declaration of trust, there is a resulting trust in favour of the grantor, unless it can be proved that an actual gift was intended. An exception has, however, been made in English law, and a gift to a wife is presumed, where money belonging to the husband is deposited at a Bank in the name of a wife, or, where a deposit is made, in the joint names of both husband and wife.
This exception has not been admitted in Indian Law under the different conditions which attached to family the, and where the social relationships are of an essentially different character.'
4. It is therefore clear from a perusal of this judgment that the burden of proof lies upon the wife or daughter or any person in whose name the deposit is jointly taken to prove that a gift was intended or made. The mere tact that it is taken in the joint names does not lead to the conclusion that it gift was made to the other person. Evidence might be let in to the effect that where a deposit is made in the joint names of A and B by A who had advanced the money, he had made a gift to B.
The intention might be manifested in various ways. A might intimate to the bank authorising or write to B that the fixed deposit amount Standing in their joint names had been gifted to or might be taken by B exclusively. A might write to the Bank authorities to pay the interest on the fixed deposit amount to B alone. A might show in his income tax returns or wealth tax returns that the deposit amount had been gifted to B and that it belongs to B alone and pay gift tax.
In all such cases, it will be clear that a conditional gift had been made that on the death of A, B would be exclusively entitled to the amount. But, if B in whose favour the gift is made happens to predecease A, it might be legitimate to hold that the gift that was made being conditional by reason ot the express terms of. the deposit receipt that it is payable to either or survivor, the amount reverts to A and he becomes the legal owner thereof and is entitled to payment.
5. The view that was laid down in ILR 55 Cal 944: (AIR 1928 PC 172) was followed in a later decision by the Privy Council in Shambbu Nath v. Pushkar Nath, AIR 1945 PC 10. On the facts of the case however the Privy Council came to the conclusion that the deposits were held for advancement and that those whose names were used were not merely nominees or benamidars.
6. The appellant has not placed any evidence in the case to show that a gift had been made by Ramaswami during his life time of the fixed deposit amount in her favour. The case that the amount of Rs. 10,000/- which was deposited in the Bank belonged to her is not supported by any documentary evidence. I am not prepared to accept her oral evidence and hold that the deposit amount belonged to her. I confirm the view of the District Judge that the sum belonged to Ramaswami and that it devolved upon the 3rd defendant on his death. I also hold that the appellant has not proved that the amount was gifted to her.
7. The next question that arises for consideration is whether the appellant is the lawfully wedded wife of Ramaswami and is entitled to share the taxed deposit amount along with the 3rd defendant. The contention of the learned Advocate-General was that the documentary evidence filed in the case proves that she was living with Ramaswami for several years as his wife. In support of this contention he relied upon the marriage invitations that were issued by Ramaswami for the marriages of the appellant's sister's daughters (Exhibits B-4 and B-5).
The marriage invitations appear to have been issued in the name of Mrs. and Mr. Dalavayi Ramaswami. Reliance was next placed upon a sale deed obtained by the appellant during the life time of late Ramaswami in which she was descried as his wife. Reference was also made to Exhibit B-7 in which the District Medical Officer, Cuddapah addressed her as the wife oi late Ramaswami. This receipt was passed after the life time of Ramaswami. The other documents that are relied on are the savings bank accounts and the fixed deposit receipt in which she was described as Mrs. Dalavayi Ramaswami.
The 1st defendant examined herself as D. W. 1 and deposed that she was married to Ramaswami on 6-6-1935. Her brother examined as D. W. 2 supported her case. The 3rd defendant stated that her husband Ramaswami was leading an immoral life, that he kept the 1st defendant as his concubine at Racherla, that he brought her to his house in 1937, that there were quarrels between the husband and the wife and that she left the house and lived with her parents thereafter. The District Judge accepted the evidence of D. W. 3 in preference to the oral evidence of D. Ws. 1 and 2 and held that the marriage of the 1st defendant with Ramaswami was not duly proved.
8. The main contention of the learned Advocate General on behalf of the appellant Was that as the appellant was continuously living with Ramaswami from 1935 tliere is a presumption that they were living as husband and wife and that the 1st defendant was not his concubine. There is no doubt that the presumption of law is in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a long number of years. Vide Mohabbat Ali v. Mohd. Ibrahim Khan, AIR 1929 PC 135. This presumption is rebuttable as pointed by Fazl Ali, J. in Gokal Chand v. Parvin Kumari, AIR 1952 SC 231. The learned Judge observed as follows at page 233:
'But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them.' The same view was kid down by the Privy Council in an earlier case reported in Ma Kin Di v. Ma Kin, (18 Mad LJ 3 (PC)). The relevant observations are as follows:
'It is necessary, before applying this presumption to make sure that we have got the conditions necessary for its existence. It is not superfluous to suggest that, first of all, there must be some body of neighbours, many or few, or some sort of public, large or small, before repute can arise. Again, the habit and repute, which alone is effective, is habit and repute of that particular status which, in the country in question, is lawful marriage.
The difference between English and Oriental customs about the relations of the sexes make such caution especially necessary. Among most English people, open cohabitation without marriage is so uncommon that the fact of cohabitation in many classes of society of itself sets up, as matter of fact, a repute of marriage. But, in countries where customs are different, it is necessary to be more discriminating, more especially owing to the laxity with which the word 'wife' is used by witnesses in regard to connexions not reprobated by opinion, bus not constituting marriage'.
But when a person is already married, no presumption of a second marriage arises by reason of long cohabitation. Vide S. A. No. 592 of 1921 dated 18th January 1924: (46 Mad LJ (SN) 8). It is clear from the facts set out above that Ramaswami was already married to the 3rd defendant. Exhibit B-11 shows that the 1st defendant and her brother owned a Devadasi inam. The 1st defendant belongs to Kalavanthula or dancing girl community. The evidence of D. W. 3, which I accept, is clearly to the effect that Ramaswami was keeping the 1st defendant as his concubine at Racherla and that he brought her later on to his residential house, I am inclined to hold on the facts of this case that the presumption of law is sufficiently rebutted.
9. There is no evidence on behalf of the 1st defendant as to the factum of marriage in 1936. The mere fact that she was described as a wife in documents ranging from 1953 does not establish that she is the lawfully wedded wife.
10. In the result, the appeal fails and is dismissed with costs of the 3rd respondent.