Madras High Court
Pappammal (Died) vs Rani (Died) on 19 August, 2005
S.A..No.168 of 1996
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 09.12.2021
JUDGMENT PRONOUNDED ON : 22.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.168 of 1996
1.Pappammal (died)
2.Pandian ...Appellants/Respondents 1 & 2
and Cross objector/Plaintiffs 1 & 3
Vs.
1.Rani (died)
2.Mahalakshmi
3.Jothi Ramalingam
4.Jeyabarathi Melathi
5.Rajarajeswari
6.Srikumar
7.Madurai Meenakshi
8.Minor Sri Jay
9.Radhakrishnan
10.Minor Janakiraman ...Respondents/Appellants
/Defendants 3, 5 to 13
11.The State of Tamil Nadu
through its Collector
Tirunelveli Kattabomman District
12.Kalaivani ...Respondents/Respondents 3 & 4
/Defendants 2 & 4
13.Subha Ranjitham ...Proposed Respondent
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S.A..No.168 of 1996
(2nd appellant is brought on record as legal heir of the
deceased 1st appellant vide order dated 19.08.2005)
(Respondents 8 & 10 represented by the Court guardian
Ms.Ezhilmary, Advocate, District Court, Tuticorin)
(13th respondent is brought on record as legal heir of
the deceased 1st respondent vide order dated 07.09.2018)
PRAYER : Second Appeal is filed under Section 100 of
C.P.C, against the judgment and decree passed in
A.S.No.189 of 1991 on the file of the learned
Subordinate Judge, Tuticorin dated 07.11.1995 reversing
the judgment and decree passed in O.S.No.465 of 1985 on
the file of the learned District Munsif, Tuticorin,
dated 16.04.1991.
For Appellants : Mr.M.P.Senthil
Advocate
For Respondents
2,3,5 to 10 &12 : Mr.S.Meenakshisundaram
Senior Counsel
For Mr.A.R.Nixon
For Respondent 11 : Mr.A.Sivanupandian
Government Advocate
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S.A..No.168 of 1996
JUDGMENT
The first plaintiff filed O.S.No.465 of 1985 before the Principal District Munsif Court, Tuticorin for a declaration that she is the legally wedded wife of the deceased M.R.Subiah Pillai and claimed that she alone is entitled to receive the family pension, family welfare fund, GPF and other monetary benefits. The plaintiff further prayed for a permanent injunction that the defendants 2 to 13 are not entitled to any monetary benefits due to the death of the said M.R.Subiah Pillai. The suit was decreed as prayed for. The defendants filed A.S.No.189 of 1991 before the Subordinate Court, Tuticorin. The appeal was allowed. As against the same, the plaintiffs have filed the present second appeal.
2.The first plaintiff had contended that she got married to one M.R.Subiah Pillai on 14.09.1949 as per Hindu Customs. Out of their wedlock, plaintiffs 2 and 3 were born. She further contended that the deceased 3/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 M.R.Subiah Pillai was working in the transport department and he died on 11.02.1984. The plaintiff further contended that the 1st defendant was having a live in relationship with the deceased M.R.Subiah Pillai. Through the said relationship, defendants 3 to 13 have been born. The defendants 2 to 8 have made a rival claim for the family pension and other monetary benefits due to the death of M.R.Subiah Pillai. Hence, the present suit.
3.The defendants filed a written statement contending that the first defendant got married to the said M.R.Subiah Pillai on 03.09.1953 as per Christian Ceremony and thereafter, they got converted themselves to Islam. The defendants further contended that M.R.Subiah Pillai died on 11.02.1984 and he was buried following the Christian ceremony. The defendants further contended that the plaintiffs have already given up their rights in the partition suit in O.S.No. 15 of 1956. The deceased M.R.Subiah Pillai has nominated only the first defendant to receive the 4/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 monetary benefits and she alone is entitled to receive the same.
4.The trial court after considering the oral and documentary evidence, came to the conclusion that the first plaintiff is the legally wedded wife of the deceased M.R.Subiah Pillai and plaintiffs 2 and 3 were born through the first wife. The trial court also found that the marriage of the first defendant with the deceased M.R.Subiah Pillai is a second marriage and is not legally valid. The trial Court further found that the defendants 3 to 8 are the children born to the said M.R.Subiah Pillai through the first defendant. The trial Court also found that just because the first defendant has been appointed as nominee, she will not be entitled to receive the terminal benefits of the said M.R.Subiah Pillai. Based upon the said finding, the trial Court declared that the first plaintiff is the legally wedded wife of the deceased M.R.Subiah Pillai and all the plaintiffs and the defendants 3 to 13 are entitled to receive the other monetary benefits 5/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 of the deceased M.R.Subiah Pillai. Challenging the said judgment and decree, the defendants filed the first appeal.
5.The First Appellate Court reversed the judgment and decree of the trial Court on the ground that the issue before the Court was to decide who is entitled to receive terminal benefits and it does not depend upon the fact who is the legally wedded wife of the deceased M.R.Subiah Pillai. The First Appellate Court also found that since the first defendant has been nominated by the M.R.Subiah Pillai, she alone will be entitled to family pension and other terminal benefits. The First Appellate Court also found that under Exhibit B17, the plaintiffs have already given up their rights and they cannot now make a claim for the terminal benefits of the deceased M.R.Subiah Pillai. Based upon the said findings, the First Appellate Court dismissed the suit and granted a decree in favour of the first defendant. As against the same, the present second appeal has been filed.
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6.The second appeal was admitted on the following substantial question of law:
“(1)Is the lower appellate Court right in holding that the question of nomination alone is important and that the question whether the appellant/plaintiff is the legally wedded wife of late Mr.M.R.Subiah Pillai is not at all relevant to the dispute?
(2)Whether the lower appellate Court is right in rejecting the claim of the appellants on the basis of Exhibit B17, the compromise decree between the appellants and the deceased M.R.Subiah Pillai, especially when the claim is made as legal heir of the deceased by virtue of Section 8 of the Hindu Succession Act, 1956?
(3)Whether the lower appellate Court is right in acting on the basis of Exhibit B18, the alleged nomination, especially when the same is not proved and the same is contrary to Rule 48 of the Tamil Nadu Pension Rules and Rule 7 of the General Provident Fund Rules?” 7/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996
7.The learned counsel for the appellants had contended that the first plaintiff has prayed for declaration that she is the legally wedded wife of the deceased M.R.Subiah Pillai, when there is a prayer in the suit, the First Appellate Court erred in refusing to answer the said prayer. He further contended that unless the issue of legality of the marriage of the first plaintiff is established, the other issues namely the entitlement of the family pension, terminal benefits cannot be decided. Hence, the First Appellate Court had erred in not going into the issue of legality of the marriage of the first plaintiff and that of the first defendant. The learned counsel further contended that even as per the marriage invitation produced by either party under Exhibits A3 and A5, it is evident that the first plaintiff is the first wife and and the first defendant is the second wife. The second marriage is prohibited while the first marriage is subsisting. Hence, the marriage of the second defendant with the deceased M.R.Subiah Pillai is not legally valid. When 8/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 the first defendant's marriage is not legally valid, the Tamil Nadu Pension Rules does not permit granting a family pension in favour of the second wife.
8.The learned counsel for the appellants relied upon a Division Bench Judgment of our High Court reported in 2018(1) WLP 725 to the effect that a second wife who has got married while the first marriage is in subsistence, is not entitled to receive family pension.
9.The learned counsel further contended that the First Appellate Court has relied upon Exhibit B17, a compromise decree arising out of a partition suit. In the said compromise decree, the plaintiffs were allotted some properties and they have given up their shares in respect of other properties. The present suit is for receiving the family pension and the terminal benefits of the deceased M.R.Subiah Pillai which was not available at that point of time. According to the learned counsel for the appellants, the terminal benefits of a deceased employee is a movable property, 9/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 and the same has to devolve as per Section 8 of the Hindu Succession Act. When the suit for partition was compromised and the movable properties were not available at that point of time, the First Appellate Court erred in relying upon Exhibit B17 to non-suit the plaintiffs.
10.The learned counsel for the appellants further contended that a nomination in the Government records is only an authorisation to receive the amount and the nominee is not entitled to the said amount. The nominee is only a trustee or an authorised person to receive the amount and he has to disburse the same among the legal heirs as per the relevant Personal Laws. Hence, the First Appellant Court has grossly erred in relying upon the nomination made by deceased M.R.Subiah Pillai in his official records for the purpose of non-suiting the plaintiffs.
11.Per contra, the learned Senior Counsel appearing for the respondents contended that the Tamil 10/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 Nadu Pension Rules provided for sharing the family pension between the first and second wife and hence, the first defendant is also entitled to receive family pension. The learned Senior counsel further contended that a nomination made by a Government employee represents the last wish of the employee and hence, the same is elevated to the status of a Will. When the deceased employee has made a Will in respect of his terminal benefits, the said last wish should be honoured and the first defendant and her children alone will be entitled to receive family pension and the terminal benefits. He further contended that once the plaintiffs got divided from the family of the deceased M.R.Subiah Pillai by allotment of properties in a compromise decree in a partition suit, thereafter they cannot make a claim over the terminal benefits of the deceased M.R.Subiah Pillai.
12.I have considered the submissions on either side.
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13.The first issue that requires to be considered by the Court is whether the first plaintiff or the first defendant is the legally wedded wife of the deceased M.R.Subiah Pillai. The marriage invitation of the first plaintiff has been marked as Exhibit A3. The said marriage invitation clearly indicates that the marriage between the first plaintiff and the deceased M.R.Subiah Pillai had taken place on 14.09.1949 as per Hindu Customs. The marriage invitation of the first defendant with the deceased M.R.Subiah Pillai has been marked as Exhibit B5. A perusal of the said document indicates that the marriage has taken place on 03.09.1953 as per Christian Ceremony. A comparison of these two documents namely Exhibits A3 and B5 will clearly indicate that the first defendant has got married to the said M.R.Subiah Pillai while the marriage of the M.R.Subiah Pillai with the first plaintiff was in subsistence. Exhibits A8 and A9 are the letters written by the first defendant to the first plaintiff and the second plaintiff. Exhibit A10 is a letter written by the deceased M.R.Subiah Pillai to the 12/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 first plaintiff. A combined reading of these letters will clearly indicate that the first plaintiff was treated as the wife by M.R.Subiah Pillai. Even the first defendant has treated the first plaintiff as the wife of M.R.Subiah Pillai. Under Exhibit A8, the first defendant has addressed the first plaintiff as her elder sister. The first defendant in a written statement has not disputed the status of the first plaintiff as the wife of the M.R.Subiah Pillai, but only claimed that she is also the wife of the said M.R.Subiah Pillai.
14.Based on the above said discussions, this Court can easily come to a conclusion that the first plaintiff is the legally wedded wife of the deceased M.R.Subiah Pillai.
15.The next question that arises for consideration is who is entitled to receive family pension. The issue is no longer res integra. The judgment of the Hon'ble Division Bench of our High Court reported in 2018 (1) WLR 725 has held as follows:
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https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 “42.We have discussed the basis on which the various judgments, of course conflicting views, have been rendered. Insofar as the view that the second wife of the Government Servant, who died prior to 02.06.1992 as held in Tamilselvi's case, referred to supra, and the view that a widow of an invalid second marriage that had taken place prior to 14.10.1991, as held in Pushpavalli's case, have given our reason, as to why, we are unable to subscribe to the said conclusions of the learned Single Judge. We are therefore, of the opinion that in order to enable a second wife to claim family pension the marriage that in order to enable a second wife to claim family pension the marriage should have been valid under the Personal Law applicable to the parties, to hold otherwise would be in violation of the law of the land, viz., the Personal Law of the parties as well as the Criminal Law, which prohibits bigamous marriage.
43.We are, therefore, constrained to conclude that the judgments which conclude that a second wife would be entitled to family pension, irrespective of her 14/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 marriage being void, under the provisions of their relevant Personal Law's applicable to the parties do not reflect the correct position of law and therefore, will stand overruled. The applicability of Sub Rule 7(a)(i) is confined only to cases where the second marriage is valid under the Personal Law applicable to the parties, only in such cases, widows of such marriages would be entitled to family pension” .
16.In view of the Division Bench judgment of this Court, even assuming that the Pension Rules permits the second wife to receive pension, when the second marriage is invalid as per Personal Laws, the second wife is not entitled to receive pension. Hence, this Court comes to a conclusion that the first defendant is not entitled to receive family pension and the first plaintiff alone is entitled to receive pension.
17.The next issue that arises for consideration is that who will be entitled to receive other monetary 15/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 benefits of the deceased M.R.Subiah Pillai. The learned Senior Counsel for the respondents had heavily relied upon Exhibit B17 compromise decree in a partition suit. Under the said decree, the plaintiffs herein were allotted some properties and the plaintiffs have given up all their rights in other suit schedule properties. The first plaintiff has also given up her past and future maintenance. Whether the decree in the said partition suit will operate as res judicata and prevent the first plaintiff from making a claim to the terminal benefits of her deceased husband M.R.Subiah Pillai. It is settled position of law, that the monetary benefits of a deceased employee are movable properties and they will devolve as per Section 8 of the Hindu Succession Act. When Exhibit B7 compromise was entered into, the present terminal benefits were not available at that point of time, the movable properties have got accrued to the deceased M.R.Subiah Pillai after the compromise decree.
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18.The learned counsel for the appellants relied upon the judgment of our High Court reported in AIR 1979 (Madras) 1 to point out that the terminal benefits being movable properties and have been acquired by the deceased M.R.Subiah Pillai after partition, they will devolve upon all the legal heirs as per Hindu Succession Act. He has also pointed out that where a property has been allotted to a co-sharer under a partition and he died instate, his son who is also a party to the said partition and again he is entitled to a share in his father's allotment. The Hon'ble Full Bench has held that the property allotted in partition to a co-sharer will devolve under Section 8 of the Hindu Succession Act, insofar as another co-sharer who was also a party to the partition.
19.The learned counsel for the appellants has also relied upon the judgment of this Court in C.S.No.333 of 2018 dated 09.04.2019 in which paragraph Nos. 15 and 16 read as follows:
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https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 “15.Mrs.Chitra Sampath, learned Senior Counsel appearing for the defendants would also draw my attention to the judgment of Full Bench of this Court in the Additional Commissioner Income Tax, Madras Vs.P.L.Karuppan Chettiar reported in AIR 1979 Madras 1, and the judgment of the Hon'ble Suprement court in Commissioner of Wealth Tax, Kanpur and others Vs. Chander Sen and others, b AIR 1986 SC 1753. The Full Bench of this Court in P.L.Karuppan Chettiars case cited supra, had held that the property allotted to the father of the male Hindu at the partition to which the male Hindu is a party, would devolve on the male Hindu, upon the death of his father after 1956, under Section 8 and not under Section 6 of the Hindu Succession Act, 1956”.
16.Thus, on the above findings, the Hon'ble Full Bench of this Court had concluded that such property where the devolution is under Section 8 would be held by the male Hindu as his separate property and not as joint family property or co-
parcenary property. The said dictum of the Full Bench of this Court was accepted and approved by a Hon'ble Supreme Court in Commissioner of Wealth Tax, Kanpur and others Vs. Chander Sen and others”.
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20. From the reading of the above said judgments, it is clear that though the plaintiffs have got partitioned under Exhibit B17, still they will be entitled to receive the terminal benefits of the deceased M.R.Subiah Pillai under Section 8 of the Hindu Succession Act.
21.The learned counsel for the respondents strongly relied upon the nomination made by the deceased M.R.Subiah Pillai under Exhibits A18 to A21 and contended that once a nomination is made, the nominee alone is entitled to receive terminal benefits and it does not devolve under Section 8 of the Hindu Succession Act.
22.The learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court reported in 2010 (2) LW 625 in which paragraph Nos.13 and 14 read as follows:
“13.The appellant submitted that
according to the settled legal position
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https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 crystallized by the judgment of Sarbati Devi (supra), the principle of law is that the nomination is only the hand which accepts the amount and a nomination does not confer any beneficial interest in the nominee.
14.In Sarbat Devi (supra), this Court has laid down that a mere nomination does not have the effect of conferring to the nominee any beneficial interest in the amount payable under the life insurance policy, on death of the insurer. The nomination only indicates the hand which is authorized to receive the amount on 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”
23.The learned counsel for the appellants also relied upon the judgment of this Court reported in 1990 (1) LW 302 in which paragraph No.9 reads as follows:
“9........The nomination is filed only to facilitate the Government to make payment to a 20/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 particular person named by the deceased Government servant, so that the Government would be in a position to discharge its liability. The person who receives the money from the Government holds it in trust for all the legal heirs of the deceased. The nomination will not operate as a testamentary disposition in favour of the nominee. As I have held that the Family Benefit Fund Scheme is more or less equivalent to a scheme of insurance, necessarily the amount payable under the scheme will form part of the estate of the deceased. Once it is held that the amount paid under the Family Benefit Fund Scheme forms part of the estate of the deceased, it has to be taken by all the legal heirs of the deceased in accordance with law of succession”
24.Hence, the contention of the learned counsel for the appellants that any nomination would amount to testamentary disposition is not legally sustainable. The first plaintiff has been held to be a legally wedded wife. In view of the Division Bench judgment of this Court, family pension can be availed only by the 21/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 legally wedded wife. This Court has also come to a conclusion that the monetary benefits will also devolve upon all the legal heirs of the deceased M.R.Subiah Pillai and not on the nominee alone.
25.In view of the above said discussion, the judgment and decree of the First Appellate Court are set aside and the following decree is passed:
(i) the first plaintiff is declared to be the legally wedded wife of the deceased M.R.Subiah Pillai.
(ii)the first plaintiff is entitled to receive family pension from the second defendant.
(ii)all the plaintiffs and defendants 3 to 13 are entitled to receive other terminal benefits of the deceased M.R.Subiah Pillai in equal share from the second defendant.
26.The second appeal is allowed on the above said terms. No costs.
22.12.2021
Index : Yes / No
Internet : Yes / No
msa
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https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 To
1. The Subordinate Judge, Tuticorin
2.The Principal District Munsif Tuticorin
3.The Collector Tirunelveli Kattabomman District
4.The Section Officer V.R.Section Madurai Bench of Madras High Court Madurai 23/24 https://www.mhc.tn.gov.in/judis S.A..No.168 of 1996 R.VIJAYAKUMAR,J.
msa Pre-delivery Judgment made in S.A.No.168 of 1996 22.12.2021 24/24 https://www.mhc.tn.gov.in/judis