Delhi District Court
Sh. Adhiraj Chaudhary vs Smt. Avani on 31 October, 2022
IN THE COURT OF SUMIT DASS, ADDITIONAL DISTRICT
JUDGE04, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI.
CNR No.DLSW010097662020
CS No.683 of 2020
In the matter of:
Sh. Vinayak Chaudhary,
S/o late Lt. Col. Manish Kumar,
Flat No.1073, Engineers Apartment,
Sector 18A, Dwarka, New Delhi.
Sh. Adhiraj Chaudhary,
S/o late Lt. Col. Manish Kumar,
Flat No.1073, Engineers Apartment,
Sector 18A, Dwarka, New Delhi. .......Plaintiffs.
VERSUS
Smt. Avani
W/o Sh. Nirdesh Malik,
House No.5/10, Exclusive Floor,
DLF Phase5, Gurgaon, Haryana. ......Defendant.
Date of Filing Suit : 23.12.2020
Date of Arguments : 29.10.2022
Date of Decision : 31.10.2022
CS No.683/20 Page No. 1/15
JUDGMENT
1. This is a recovery suit preferred by the sons against their mother seeking recovery of Rs.27,66,903/ along with interest.
2. Naturally since this relation of mother and children is the most precious one, it was hoped that they would amicably reconcile/settle their differences but unfortunately their relations had strained or considerable damaged and as such no viamedia was left for any settlement interse. They have donned the mantle of litigants - sons as plaintiffs and their mother, the defendant.
3. At the same time still hoping that good sense may ultimately prevail upon them and the relations/bond between them may again blossom, in asmuch as the relation of a child and mother is a relation given by the Creator, I have no other option left but to dispose of the matter on merits so that ultimately there is a thaw and finality to the lis.
4. Plaintiffs are sons of the defendant from marriage with Lt Col. Manish Kumar who had taken voluntarily retirement from Army in July, 2010 and unfortunately expired on 09.08.2013. After nearly three years, the defendant i.e. plaintiffs' mother remarried with cousin of their father namely Sh. Nirdesh Malik on 10.07.2016. Said are undisputed facts.
CS No.683/20 Page No. 2/154.1 Now plaintiffs contended that pension benefits of their father were being credited into State Bank of India account no.30006501010. This was a family pension for their common benefit and they were entitled to 2/3 rd of said pension benefits/amounts lying in the account. After defendant's marriage with Sh. Nirdesh Malik, defendant cannot claim any pension or her entitlement over pension ceases. However, she still received the pension in her bank account and had also submitted "live certificate"
which was false to her knowledge and continued to make illegal withdrawals from the account solely for her own benefit. In the said manner she had withdrawn Rs.21,83,576/ inclusive of an FDR of Rs.7,85,405/ balance which she had utilized for her own benefits. Upon complaints having been made to the bank/authorities, the defendant had returned Rs.7,14,750/ to the bank. In the facts and circumstances, the plaintiffs had preferred the suit for recovery of Rs.27,66,903/ being due towards them 2/3rd of FDR amount of Rs.8,74,991/ and Rs.21,83,576/ illegal withdrawal by the defendant after her remarriage.
5. Defendant in Written Statement had primarily taken three objections/defences which I am summarizing herein.
(i)by virtue of provisions of pension rules of Indian Army as per family pension rules AI 51/80, by which she was entitled to family pension/pension was drawn in her favour, she claimed that entire family pension belongs to her being widow excluding the plaintiffs;
(ii)she propounded a case that her husband had left a Will dated 23.05.2002 bequeathing his movable and immovable properties to her;CS No.683/20 Page No. 3/15
(iii)she claimed that she had no criminal intention to keep the money and transferred back entire pension which she received after her remarriage to the bank.
5.1 She further contended that the grandfather of the plaintiffs had also informed the bank about the factum of her remarriage and she had also approached the bank for stopping the pension but to no avail. She further contended that she was made to part with substantial money by plaintiffs' grandfather from said amount and being a mother, she was spending majority of the money on the welfare of the children for which she had provided the details in the written statement.
6. Pleadings were complete and in terms of order dated 20.03.2021, Ld. Predecessor had settled the following issues:
(1)Whether the plaintiffs are entitled to Rs.27,66,903/ as prayed for? OPP (2)Whether the plaintiffs are entitled to any interest? If so, at what rate and for what period?OPP (3)Whether the defendant has spent the amount for the welfare of plaintiffs?OPD (4)Relief.
I note herein that by said order, pending applications were also disposed of.
CS No.683/20 Page No. 4/157. Plaintiff No.1 entered into witness box as PW1 and filed his evidence by way of affidavit Ex.PW1/A. He relied upon photocopy of his Aadhar card as Ex.PW1/1, copy of marriage certificate as Ex.PW1/2 [already exhibited as Ex.PW3/5], copy of Written Statement filed in petition u/s 372 of Succession Act as Ex.PW1/3, copy of bank statement account as Ex.PW1/4 [already exhibited as Ex.PW2/A Colly)], copy of statement submitted by the State Bank of India with Ld. ACJ Court, Dwarka with respect to details of all the FDRs issued in the name of defendant as Ex.PW1/5 [already exhibited as Ex.PW2/A Colly)], copy of statement of account showing withdrawal of Rs.21,83,576/ as Mark A and summary of recovery amount as Mark B. He was crossexamined and discharged.
7.1 Sh. Srikant Mishra, Customer Assistant, State Bank of India, was examined as PW2. He produced statement of account in respect of bank account no.30006501010 in the name of Smt. Avani Singh and details of FDR attached with the said account as Ex.PW2/A (Colly). He also brought life certificate of Mrs. Avani Ex.PW2/B and computer generated record of life certificate as Ex.PW2/C. He was crossexamined and discharged.
7.2 PW3 Sh. S.S. Rawat, Subedar from Integrated HQ of MoD (Army) had brought copy of family pension scheme of Indian Army issued by Ministry of Defence and the same was exhibited as Ex.PW3/1 (Colly), clarification submitted by Mrs. Avani Singh to Indian Army regarding transfer of pension to her sons after he marriage as Ex.PW3/2 along with CS No.683/20 Page No. 5/15 birth certificates of both her sons as Ex.PW3/3 and Ex.PW3/4, her remarriage certificate as Ex.PW3/5, death certificate of her husband as Ex.PW3/6, copy of old PPO bearing No.M/003886/2010 as Ex.PW3/7, fresh PPO No.MF00022018 as Ex.PW3/8, covering letter dated 25.08.2021 regarding all above documents as Ex.PW3/9.
8. Defendant entered into witness box as DW1. She tendered her evidence by way of affidavit Ex.DW1/A. She relied upon copy of Will dated 23.05.2002 of late Lt. Col. Manish Kumar as Ex.DW1/1, copy of letter dated 12.04.2012 signed by her late husband declaring as nominee as Ex.DW1/2, extract copy of the instructions on ordinary family pension as Ex.DW1/3, copy of letter dated 18.07.2016 as Ex.DW1/4, copy of letter dated 03.04.2017 as Ex.DW1/5, copy of letter dated 26.04.2017 as Ex.DW1/6, copy of order dated 24.12.2019 passed in CRL MC 6705/2019 as Ex.DW1/7 and chart showing alleged withdrawal of Rs.21,83,576/ as Ex.DW1/8. Relevant to note herein that there was a Court observation that all the said documents' originals were not placed on record and consequently they were deexhibited and marked as Mark A to Mark H respectively. She was crossexamined and discharged.
8.1 DW2 Sri Kant Mishra, from State Bank of India who was earlier examined as PW2 was recalled in the defence evidence of defendant. He had brought copy of statement of recovery of amount of Rs.714750/ from account of Mrs. Avani Singh as Ex.DW2/1, copy of letter "Whomsoever it may concern" mentioning the amount of recovery of CS No.683/20 Page No. 6/15 pension as Ex.PW2/2, Copy of letter No.CPPC/MISC/201718/369 dated 13.04.2017 with calculation sheet of amount of pension recovery as Ex.PW2/3 and copy of letter dated 21.02.2017 from Mrs. Avani Singh as Ex.PW2/4. His examination in chief was deferred for want of certain documents. He again entered into witness box for further examination and deposed that requisite documents could not be traced out and filed letter from Chief Manager in this regard as Ex.DW2/2. It was observed by the court that earlier documents were wrongly exhibited as Ex.PW2/2, Ex.PW2/3 and Ex.PW2/4 whereas the same were to be exhibited as DW2/2, DW2/3, DW3/4 and the same were corrected. He was cross examined and discharged.
9. Heard either side.
10. Issues settled reads as under:
(1)Whether the plaintiffs are entitled to Rs.27,66,903/ as prayed for? OPP (2)Whether the plaintiffs are entitled to any interest? If so, at what rate and for what period?OPP (3)Whether the defendant has spent the amount for the welfare of plaintiffs?OPD All these issues can be conveniently disposed of together.
10.1 Firstly, insofar as the version of the defendant that a Will was executed CS No.683/20 Page No. 7/15 by Lt. Col. Manish Kumar and she was sole beneficiary thereof, relevant to note herein, no witness has been examined in support of the said Will. The original of the Will was also not produced on record. Infact the defendant had sought opportunity to examine the attesting witness to the Will but no witness whatsoever was examined. In absence thereof, by virtue of the provisions of Section 68 of the Indian Evidence Act, 1872 the Will cannot be taken into consideration. To put it simply, it is not even the worth of the paper on which it has been drawn.
10.2 For the sake of completeness I am also quoting the Will marked as Mark A as here under:
"I hereby give and bequeath to my wife Mrs. Avani, her heirs, executors or administrators, for her use and benefit, absolutely and for ever all my property, both movable and immovable, whatsoever and of what nature and quality soever, and I hereby appoint her, the said Mrs.Avani sole executrix (or executor) of this my "Will".
In Witness whereof, I, the said Major Manish Kumar have hereto signed (or, put my signature, or, set my hand), at C/o 56 APO this Twenty Three day of may 2002.
Signed and/or acknowledged by the said Major Manish Kumar in the present of as, present at the same time, who at his request, in his presence and in the presence of each other, sign as witnesses hereto.
This Will is attested by two Army officials. It is also not clear as to when and under what circumstances such a Will was executed or it was executed during combat duties as the husband of the defendant was then a CS No.683/20 Page No. 8/15 Major in the Army. No such reliance hence, as such can be made to the said Will.
10.3 Now coming to the second aspect that the pension was exclusively for the defendant being head of the family and for her own benefit.
If I just for a moment have a look at the document Ex.PW3/1 which a document bearing No.17(4)/2008(2)D(PEN/POLICY) Govt of India, Ministry of Defence, Department of Exservice Welfare, New Delhi dated 12.11.2008. Family pension means/has been categorized as including (a) the widow or widower, upto the date of the marriage whichever is earlier, and (b) son/daughter (including widowed daughter) upto death or his/her marriage/remarriage or till date she/he starts earning or till the age of 25 years whichever is earlier.
10.4 Now in the light of such description of Family to contend that this pension was exclusively for the benefit of the defendant or to be utilized by her is completely an untenable argument.
10.5 Again it is to be noted herein the army authorities have given pension to one person treating Family to be a single unit and not splitting individual pension amongst the beneficiaries, same does not mean that the pension would be exclusively the property of the defendant or could have been solely appropriated by her/utilized by her to the detriment of the interest of the plaintiffs.
CS No.683/20 Page No. 9/1510.6 Coming to third and most important aspect that the defendant had erroneously given life certificate and later on returned the entire sum of money and infact thereafter criminal proceedings were also dropped against her and substantial part of the money spent by her was for the benefit of the plaintiffs.
10.7 In this regard let me have to look at the crossexamination of DW1. She had remarried on 10.07.2016. Now live certificate was given by her on 16.01.2017 which is Ex.PW2/B. DW1 was crossexamined and during her crossexamination she deposed that she was M.Sc. and B.Ed. and grandfather of the plaintiffs had informed the bank about the factum of her remarriage. She also telephonically informed as to the said fact to the bank. However, upon being further crossexamined, she could not depose as to whom the said information was given. She admitted that no intimation was given by her with respect to her remarriage to Army authorities. She further deposed that she returned to India after remarriage in October 2016. She also deposed that she had not mentioned about her marriage till her letter addressed to SBI/till 03.04.20017.
10.8 Fact of the matter is that if I look at the record of bank statement, family pension was being credited monthwise and account was being operated by the defendant notwithstanding the fact that she was not in India as there are ATM withdrawals from the said bank account as well as cash withdrawals.
CS No.683/20 Page No. 10/1511. In any eventuality if the defendant as mentioned above would have intimated the factum of remarriage or grandfather would have intimated to the bank as claimed by her, then in said circumstances there would not have been any need to submit live certificate on 16.01.2017. Though I am not using the word 'lying' but it is obvious that the defendant had not informed the bank as to the factum of her remarriage and to the contrary had given the certificate to the bank on 16.01.2017. May be quite possibly at that point of time, the defendant may not be aware of its implications and she continued to operate the bank account or let it be operated in her absence through the said ATM withdrawals etc, but the irresistible conclusion remains is that she ought not to have after 10.07.2016 operated the pension bank account. Again I note she is not a lay woman and is educated. She is educated. Her right to claim pension ceased on the date of her remarriage. The amount lying in the account should not have been utilized for any reason as the live certificate was required for the purposes of continuation of the bank account/pension from the Army. Further, the pension would have been transferred in the name of her children as per the Army regulations to her exclusion as she ceased to be dependent/ had remarried.
12. Again I note that it is quite probable that the defendant being mother chose to continue to operate the same or continued carrying out bank transactions for the reason that she may be utilizing the money or operating the bank account for her banking needs/convenience but that does not legalize her said action(s) post her remarriage.
CS No.683/20 Page No. 11/1512.1 Now there are cash withdrawal entries and entries in the name of Savita Taneja, Rajnish Verma, Reena Verma, etc., which to my mind cannot be justified to be for the benefit of the minor children. Furthermore, the defendant has chosen to justify her operation of bank account and claimed that majority of the money withdrawn/transactions were for the welfare of the children. Obviously she being the mother she would be spending the money for the welfare of her children and I am not inclined to disbelieve her statement qua the said aspect as well notwithstanding the fact that she had remarried. Still, the point which remains is as to how to appropriate/distribute the remaining amount in the account and to take note of the withdrawal of sums after her marriage.
13. Now the family pension was for the benefit of all the members of the family including the plaintiffs herein. Ideally in my considered opinion, the FDRs lying in the account excluding the FDRs which were prepared during the lifetime of Lt.Col. Manish Kumar be apportioned in the ratio of 2:3 to the plaintiffs and 1:3 to the defendant. As per the report furnished by the bank following FDRs are in the name of defendant Avani Singh:
(i)FDR dated 23.05.2016 for Rs.10,25,779/,
(ii)FDR dated 30.012.2017 for Rs.2,52,796/,
(iii)FDR dated 26.01.2017 for Rs.2,52,932/ and
(iv)FDR dated 27.04.2017 for Rs.2,00,000/.
CS No.683/20 Page No. 12/15Following FDRs are in the name of Lt. Col. Manish Kumar:
(i)FDR dated 19.09.2012 for Rs.3,47,792 and
(ii)FDR dated 02.09.2016 for Rs.1,93,268/ 13.1 Regarding FDRs in the name of Lt. Col. Manish Kumar it is stated that succession certificate case is pending. Hence, the same are excluded from consideration herein. The said FDRs in the name of Avani Singh are apportioned in the ratio of 2/3 in favor of the plaintiffs. The cash amount lying in the account is also apportioned accordingly i.e. 2/3 to the plaintiffs. Needless to submit that the FDRs would be carrying interest and the aforesaid amount inclusive of interest accrued upto date would enure in favour of the plaintiffs or they would be entitled to the same.
13.2 Coming to the withdrawals which were made pursuant to her remarriage, total withdrawal comes to Rs.14,63,012/. The FDRs which have been made from the account in favour of the defendant have already been appropriated in the preceding para.
Now I have two options either to evaluate each and every entry or transaction as the defendant has claimed that majority of the transactions were for the benefit of the plaintiffs or to divide the said sum of money between the parties on the same ratio i.e. 2/3 and 1/3. I am of the opinion that the second option is more suitable. First of all, this aspect of spending the money by the mother over her children should not be put to scrutiny as it is otherwise fond wish, duty or joy of the mother to spend money over her children for their upbringing. Undue scrutiny or evaluating each and every entry/transaction would be also destroying the very foundation of fabric of their relation i.e. of mother and children which still subsists CS No.683/20 Page No. 13/15 notwithstanding the same being put to strain.
13.3 Secondly as mentioned above, the defendant ought not to have operated the said bank account after her remarriage as pension was being deposited therein. It would have been a much simpler exercise if the defendant had followed the strict letter of law and chosen to put a sort of freeze over the account.
13.4 As such considering the totality of facts and circumstances and also that this amount could be utilized by the plaintiffs for their professional studies/career as still they are not settled ends of justice would be met that the amount of Rs.14,63,012/ is also apportioned/divided in the ratio of 2/3in favour of the plaintiffs and the defendant is made liable to pay the said amount to the plaintiffs herein alongwith interest @ 9% from 16.01.2017 the date of her giving the live certificate to the bank. The said amount be returned and an FDR be made in the name of plaintiff no.2 for a period of three years/till he reaches the age of eighteen. The interest on the said FDR can be utilized exclusively by the plaintiff no.2.
13.5 Amount of Rs.7,14,750/ was returned back by the defendant to the bank qua which as informed there is a stay by Competent Court. I am not adjudicating qua the said amount.
14. In view of the aforesaid discussions, issue no.1 and 2 are decided in favour of plaintiff and issue no.3 is decided adverse to the defendant.
CS No.683/20 Page No. 14/15Relief:
15. In view of the above findings, the suit of the plaintiff is decreed as indicated herein above. The defendant to comply with the direction with regard to preparation of the FDRs in the name of plaintiff no.2 within a period of six weeks from today and furnish the same in Court. With regard to the other sum, already the amount is lying by way of FDRs/cash in the account and the same be apportioned as ordered herein above. State Bank of India, concerned branch Dwarka is directed to apportion the same after a period of eight weeks from today. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court (Sumit Dass)
on 31.10.2022 Additional District Judge04
South West District, Dwarka Courts,
New Delhi.
CS No.683/20 Page No. 15/15