The presumption of marriage arising from long cohabitation is rebuttable by evidence that the husband was already married to another person.

( 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. 00 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. 00 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