N.K. Das, J.
1. One Birakishore Samal died on January 17, 1975. Respondents Nos. 1 and 2 applied for the grant of a succession certificate in respect of the provident fund, gratuity, family pension, etc., as well as a sum of Rs. 4,000 covered by two insurance policies. Respondent No. 1 claimed to be the married wife of the deceased and respondent No 2 his adopted son. The appellant was arrayed as opposite party No. 3 in the misc. case as the mistress of the deceased. Respondents Nos. 1 and 2 claimed that they were entitled to the dues admissible to the deceased under the contributory provident fund, family pension as well as the insurance policies left by the deceased. They also claimed that they were entitled to the gratuity payable to the deceased as he was an employee of the Orissa State Road Transport Corporation. According to them, the appellant was not the legally married wife of Birakishore but was his mistress and taking advantage of this, was making attempts to get the dues of the deceased Birakishore. The State Transport Corporation and the Life Insurance Corporation did not contest. The only contestant was the appellant. According to her, she married deceased Birakishore at Puri when respondent No. 1 was aged about ten to twelve years, but subsequently the deceased married respondent No. 1 only to avoid social difficulties. Despite the marriage of respondent No. 1 with the deceased, the appellant and the deceased continued to live as husband and wife and respondent No. 1 never led her marital life with the deceased. On these grounds the appellant claimed that she was entitled to the dues payable to deceased Birakishore.
2. The trial court has held that the appellant is not the married wife of the deceased. Respondents Nos. 1 and 2 being the wife and son of the deceased respectively, are his legal heirs and, as such, they are entitled to all the moneys due to the deceased.
3. The appellant admits that respondent No. 1 was the married wife of the deceased. It is also not seriously disputed that respondent No. 2 is the son of the deceased. Accordingly, both of them are the successors and legal heirs of the deceased. The only question was whether the appellant was the married wife of the deceased as claimed by her. She admits that she had married one Nitei Sahu, before her marriage with the deceased Birakishore. There is no evidence on record to show if that marriage was at any time dissolved. A feeble attempt has been made by the only statement of the appellant herself that, as she lived with Birakishore her, husband, Nitei Sahu, observed the funerals announcing her to be dead. This evidence cannot establish dissolution of the marriage of the appellant with Nitei Sahu. There is no evidence on record to show that Nitei Sahu is no longer alive. According to the appellant, her marriage with Birakishore took place in the Puri temple. Evidence has been led to show that an application was made before the Mukti Mandap Sabha, some money was deposited and a receipt was granted and also entries were made in a register about their marriage. Neither the relevant register has been produced nor anybody has been examined to prove the marriage at Puri. The little evidence that has been adduced relating to the marriage function is discrepant and the trial court has rightly held that no reliance can be placed on such evidence. The statement of the appellant in court compared with the pleadings in her written statement is so prevaricating and inconsistent that no reliance can be placed on such testimony to conclude that there was a marriage between the appellant and the deceased Birakishore. The trial court has rightly held that the evidence in this respect cannot be believed.
4. Even assuming that the manage at all was held, such a marriage is invalid in the eye of law, because the appellant, as admitted by her, was the married wife of Nitei Sahu. Before the coming into force of the Hindu Marriage Act, according to the law existing at that time, a man could marry more than one woman but he could not marry the wife of another man. I have already held that there is no evidence that the marriage of the appellant with Nitei Sahu had already been dissolved or that Nitei Sahu was dead. In view of the aforesaid position, as I have already held above, even if it is assumed that there was a marriage, such a marriage is invalid in law.
5. Mr. Ghose, the learned counsel for the appellant, contends that there can be a presumption of marriage between a man and a woman from the continuous cohabitation as husband and wife and the treatment as such for a number of years and this presumption is a rebuttable one. Reliance has been placed in this connection in the case of Gokal Chand v. Parvin Kumari, AIR 1952 SC 231. The present case is not one where the evidence could not be available as to the marriage and when such, a marriage took place. The definite stand taken by the appellant is that the marriage took place in a particular year, in a particular method and at a particular place. Even if there is a presumption of marriage, the presumption is rebuttable as has been held in the aforesaid decision of the Supreme Court. The evidence, as discussed above, clearly goes to show that the presumption, if any, has been fully rebutted by other materials available on record. Accordingly, I am in agreement with the decision of the trial court that the appellant is not the married wife of the deceased Birakishore.
6. It is next contended by Mr. Ghose that respondents Nos. 1 and 2 are not entitled to succession certificate in respect of the insurance policies for Rs. 4,000 in which the appellant has been described as his nominee by the deceased. Reliance has been placed on Section 39 of the Insurance Act and it is contended that she being the nominee she is the only person who is entitled to draw the money and she has a right to get that property and none else. In this connection reliance was placed on M. Malati v. M. Dharma Rao, ILR  Cuttack 625. This was a case in which the question of withdrawal of provident fund and gratuity was in dispute and it was decided that according to Section 5 of the Provident Funds Act, the nominee would be entitled to the provident fund deposit. Section 5 of the Provident Funds Act contains two specific clauses which are absent in Section 39 of the Insurance Act. The first one is the non obstante clause which is to the effect that ' notwithstanding anything contained in any law for the time being in force or in any disposition whether testamentary or otherwise by a subscriber... ' and the second clause is that 'the nominee becomes entitled to the exclusion of all other persons to receive such sum or part, as the case may be'. But in Section 39 of the Insurance Act, there is no such rider that it is only the nominee who has to receive the money and, if there has been any nomination, the money secured by the policy shall be paid in the event of his (assured's) death to such nominee. There is no non obstante clause or the term 'exclusion of others ' in Section 39 of the Insurance Act. Therefore, the case relied on is not applicable to the facts and circumstances of the present case.
7. The appellant also relies on the decision of Kesari Devi v. Dharma Devi  33 Comp Cas 93 ; AIR 1962 All 355. This was a case where a nominee in an insurance policy died before the maturation of the policy and the legal representatives of the nominee claimed to get the money. It was held that the heirs of the nominee, and not of the assured, were entitled to payments under the policy. Reliance was placed on Sub-sections (1), (5) and (6) of Section 39 of the Act. Again, in a Single Bench decision of the Delhi High Court in S. Fauja Singh v. Kuldip Singh, AIR 1978 Delhi 276, it was held that the nominee in an insurance policy is not merely a trustee or collector of the insurance policy amount but is the real person entitled to the same. The Delhi High Court dissented from a decision of the Calcutta High Court in LIC of India v. United Bank of India Ltd.  41 Comp Cas 603 ; AIR 1970 Cal 513.
8. A Full Bench of the Allahabad High Court in Raja Ram v. Mata Prasad  43 Comp Cas 53 ; AIR 1972 All 167 [FB], considered decisions of different High Courts, including LIC v. United Bank of India  41 Comp Cas 603 ; AIR 1970 Cal 513, and held that the policyholder continues to hold interest in the policy till the moment of his death and if the policy matures during his lifetime then the benefit arising thereunder shall be his and not of his nominee. As the benefit secured by the policy forms part of the estate of the deceased policyholder, his creditors can realise their loans from the money paid to the nominee. The nominee in such circumstances would be a legal representative of the deceased policy-holder. The Full Bench held that in Kesari Devi's case  33 Comp Cas 93 (All), the contest was between the widow of the assured and the widow of the nominee and the problem which arose in that case did not arise before the Full Bench and the Full Bench did not express any view on Kesari Devi's case.
9. This court had an occasion to consider the position of a nominee under Sub-section (6) of Section 39 of the Insurance Act. Following the aforesaid Full Bench decision of the Allahabad High Court, it was held in Malli Dei v. Kanchan Prava Dei, AIR 1973 Orissa 83, that under a nomination in the policy the amount is payable to the nominee. The section does not say that the nominee acquires title to the amount to the exclusion of all other heirs. It may be pertinent to note that a Full Bench of the Kerala High Court in Sarojini Amma v. Nilakanta Pillai  31 CompCas (Ins.) 86 ; AIR 1961 Ker 126 [FB], had decided this question which was not noticed in the decisions referred to above. In the case of Smt. Saraswatibai v. Malati  48 Comp Cas. 264; AIR 1978 Kar. 8, the Full Bench decision of the Kerala High Court was noticed and it was held in that case that the plain meaning of Sub-section (6) of Section 39 was that the nominee has no other right except a bare right to collect the policy money without affecting the title of other claimants, if any.
10. The consensus view appears to be in favour of the decision of the Full Bench of the Kerala High Court which has been followed by the Karnataka High Court. The aforesaid view is in consonance with the view expressed by this court in the case of Matti Dei, AIR 1973 Orissa 83. In view of the aforesaid position, I am inclined to accept the view that the nominee in an insurance policy has only the right to receive the money and the legal heirs of the deceased are not deprived of their right to succeed to the property. The nominee does not acquire title to the amount to the exclusion of all other heirs of the insured.
11. On the aforesaid analysis, I am in agreement with the ultimate decision of the trial court.
12. In the result, the appeal fails and is dismissed, but, in the circumstances, there will be no order as to costs.