Madras High Court
Poongavanam vs Thangamani on 11 January, 2012
Author: T. Raja
Bench: T. Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 11.01.2012 Coram THE HONOURABLE MR.JUSTICE T. RAJA SECOND APPPEAL No.305 of 2006 1.Poongavanam 2.Kumaravel 3.Minor Viji 4.Minor Saravanan 5.Minor Tamilarasan ... Appellants vs. 1.Thangamani 2.Santhameena 3.Gokilavani 4.Rohini Devi 5.The Superintendent Engineer, Tamil Nadu Electricity Board, Dharmapuri. 6.The Executive Engineer (Operation & Maintenance), Tamil Nadu Electricity Board, Pochampalli. 7.The Assistant Executive Engineer (Operation & Maintenance), Tamil Nadu Electricity Board, Bargur ... Respondents SECOND APPEAL filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 22.02.2005 made in A.S.No.31 of 2003 on the file of the Principal District Judge, Dharmapuri at Krishnagiri District partly reversing the Judgment and Decree dated 14.1.2003 passed in O.S.No.190 of 1997 on the file of the Subordinate Judge, Krishnagiri. For Appellants : Mr.Shivakumaran For Respondents 1 to 4 : Mr.M.Govindaraj For Respondents 5 to 7 : Mr.V.Viswanathan Standing counsel for TNEB JUDGMENT
The present second appeal has been directed against the Judgment and Decree dated 22.02.2005 passed by the learned Principal District Judge, Dharmapuri at Krishangiri in A.S.No.31 of 2003 in and by which the Judgment and Decree dated 14.1.2003 passed by the learned Subordinate Judge, Krishnagiri in O.S.No.190 of 1997 has been reversed.
2.The brief facts which lead to file the second appeal are as follows:
(i)The suit was filed by the first wife and her children for partition of the scheduled mentioned properties into two equal shares and to allot one such share to the plaintiffs and to further direct the defendants 5 to 7/respondents 5 to 7 to pay half share of the surrender salary, family pension and the other benefits payable to late Subramani to the plaintiffs and for permanent injunction to restrain the defendants 5 to 7/respondents 5 to 7 from disbursing the amounts to the defendants 1 to 4/respondents 1 to 4.
(ii)The first plaintiff, Poongavanam is the second wife of late P. Subramaniam, who worked as Line Inspector in Tamil Nadu Electricity Board at Mathur. The plaintiffs 2 to 5 are the children born out of the marriage took place between the first plaintiff and the deceased Government servant, late Subramani. The defendants 5 to 7 namely the Tamil Nadu Electricity Board are arrayed as parties to sanction all the benefits of late P.Subrmani, namely the surrender salary, DCRG, family pension and the other benefits payable to late Subramani upon his death. It was submitted before the Courts below that the plaintiffs 2 to 5 are sons and daughters born out of the marriage took place between the first plaintiff (second wife) and the deceased Government (late Subramani) and therefore another prayer was also sought for to allot 1/8 share in all the amounts mentioned in the plaint. The trial Court after proper enquiry, decreed the suit as prayed for.
(iii)Aggrieved by the said judgment passed by the learned Subordinate Judge, Krishnagiri, an appeal in A.S.No.31 of 2003 was preferred by the defendants 1 to 4 viz., the first wife/Thangamani/first defendant and her children on the ground that the marriage never took place between the first plaintiff/Poongavanam and the deceased P.Subramani, who was a Government Servant, hence, the judgment and decree passed by the Trial Court granting 1/2 share to the plaintiffs 2 to 5 cannot be accepted and the same has to be set aside.
(iv)The learned first appellate Court in its finding stated that the marriage took place between the first plaintiff and the deceased P.Subramani, who was Government servant is not valid, but the children born out between them are the valid legal heirs and hence, it confirmed the judgment and decree passed by the trial Court by accepting to enjoy 1/8 share in respect of item Nos.1 to 4 i.e Family Benefit Fund, D.C.R.G, Provident Fund and Leave Salary by the plaintiffs 2 to 5 and the defendants 1 to 4 and in respect of the fifth item i.e. the Family Pension is concerned, it reversed the finding of the trial Court stating that the first defendant is entitled to get pension as she alone was a legally wedded wife. As far as the share of the schedule mentioned property is concerned, the appellate Court confirmed the judgment and decree passed by the trial Court holding that the plaintiffs 2 to 5 and the defendants 1 to 4 are entitled to 1/8th share. Against the said judgment, the second appeal has been filed.
3.Heard Mr.Shivaraman, learned Senior Counsel appearing for the appellants and Mr.M.Govindaraj, learned counsel appearing for respondents 1 to 4 and Mr.V.Viswanathan, learned standing counsel appearing for the respondent Electricity Board 5 to 7.
4.At the time of admission of the above second appeal, the following substantial questions of law were framed.
i)When Rule 49(7)(a)(i) says that the family pension shall be paid to widows in equal shares and when Rule 49(7)(b) clearly says that where the deceased Government servant or pensioner is survived by the widow who has left behind eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the Government servant or pensioner?
ii)Is the Lower Appellate Court correct in law, in not molding the relief in the light of Rule 82 providing relaxation of rules, for the purpose of making provisions for payment of pension to the plaintiffs 2 to 5, who are otherwise eligible as legitimate children?
iii)Is the Lower Appellate Court correct in law, in not applying the principle laid down in the judgment reported in AIR 2000 S.C at page 735 (Rameswari Devi vs. State of Bihar and Others)?
(iv)Is the Lower Court correct in not considering that the ineligibility of the first plaintiff to receive her share of the pension cannot deprive the plaintiffs 2 to 5 who from having a share in the family pension?" otherwise?"
5.The learned counsel appearing for the appellants while assailing the judgment and decree passed by the first appellate Court, by referring to Rule 49(7)(a)(i) of the Tamil Nadu Pension Rules, submitted that where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares.
6.It was further argued that the first appellant/first plaintiff herein being the second wife by having validly conducted the second marriage with the deceased P.Subramani, who was the Government employee, that too with the consent of the first wife, the trial Court ought to have considered the first appellant/first plaintiff/second wife of late P.Subramani as a widow. If she is considered as a widow, according to Rule 49(7)(a)(i) of the Tamil Nadu Pension Rules, where the family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares, on that basis the first appellant/first plaintiff would be eligible to get pension. But, he pleaded that the first appellate Court has failed to consider this factual aspect that the first appellant/first plaintiff/second wife is a legal widow of the deceased P.Subramani, who was the Government employee hence, he further pleaded that this Court may direct the respondents 5 to 7 to pay the pension as prayed for to the first appellant/first plaintiff.
7.In support of his submission, the learned counsel for the appellants has heavily relied upon the decision in RAMESHWARI DEVI V. STATE OF BIHAR AND OTHERS (AIR 2000 (1) SC 735) wherein it is held that 'Under Section 16 of Hindu Marriage Act, children of void marriage are legitimate, under the Hindu Succession Act, 1956, therefore, property of a male Hindu dying intestate devolves firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get equal shares'. On the above said basis, the learned counsel for the appellant prayed this Court to set aside the judgment and decree passed by the first appellate Court and to restore the judgment and decree passed by the trial Court in respect of the fifth item i.e. family pension is concerned.
8.The learned counsel for the respondents 1 to 4 has heavily objected the contention of the learned counsel for the appellants by taking into consideration Rule 49(6) of the Tamil Nadu Pension Rules. It is very useful to extract Rule 49(6) of the Tamil Nadu Pension Rules here under:
"The period for which the family pension is payable shall be as follows:
(i)in the case of a widow or widower upto the date of death or remarriage, whichever is earlier;
(ii)in the case of a son until he attains the age of (twenty five) years;
(iii)in the case of an unmarried daughter,until she attains the age of (twenty five years) or until she gets married whichever is earlier;
(Provided that if the son or daughter of a Government servant including the son or daughter, born after retirement from the marriage solemnized before or after retirement of a Government servant, is suffering from any disorder or disability of mind (including mentally retarded) or is physically crippled or disabled, whether such handicap manifests before or after retirement or death while in service of a Government servant so as to render him or her unable to earn a living even after attaining the age of (25 years) in the case of the sons and (25 years) in the case of the daughter, the family pension shall be payable to such son or daughter for life subject to the following conditions, namely-
(i)if such son or daughter is one among two or more children of the Government servant, the family pension shall be initially payable to the minor children in the order set out in clause (iii) of sub-rule (8) until the last minor child attain the (age of 25) and thereafter the family pension shall be resumed in favour of the son or daughter suffering from disorder or disability of mind or who is physically cripple or disabled and shall be payable to him/her for life.
[(ii)if there are more than one such son or daughter suffering from disorder or disability of mind [including mentally retarded] or who are physically cripped or disabled, the family pension shall be paid, -
(a)in the order of their birth, irrespective of the sex of the child and the immediate younger of him or her will be eligible for family pension only after the elder above him or her becomes ineligible for family pension.
(b)in cases of twin children to such twin children in equal shares. In the event of any of such children ceasing to be eligible for family pension his or her share of family pension will become payable to the other such child and when both such children become ineligible for family pension the family pension will become payable to the next eligible child or twin children, as the case may be]
(iii)the family pension shall be paid to such son or daughter through the guardian as if he or she were a minor;
(iv)before allowing the family pension for life to any such son or daughter the sanctioning authority shall satisfy that the handicap is of such a nature as to prevent him or her from earning his or her livelihood and the same shall be evidence by a certificate obtained from a medical officer not below the rank of a Civil Surgeon setting out, as far as possible the exact mental or physical condition of the child.
(v)the person receiving the family pension as guardian or such son or daughter shall produce every three years a certificate from a medical officer not below the rank of a Civil Surgeon to the effect that he or she continues to suffer from disorder or disability of mind or continues to be physically crippled or disabled.
(vi)such daughter shall not be eligible for family pension from the date on which she gets married.
(vii)the family pension payable to such son or daughter shall be stopped if he or she starts earning his (or) her livelihood.
(viii)it shall be the duty of the guardian of such son or daughter to furnish every month to the Treasury or Bank, as the case may be a certificate to the effect that he or she has not started earning his or her livelihood; and in the case of such daughter that she has not yet married]
(ix)In the case of a mentally retarded son or daughter, the family pension shall be payable to a person nominated by the Government Servant or the pensioner as the case may be and in case no such nomination has been furnished to the Head of Office by such government servant or pensioner during his life time, to the person nominated by the spouse of such Government servant of family pensioner, as the case may be, later or] (7)(a)(i)Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares.
(ii)On the death of a widow, her share of the family pension shall become payable to her eligible child:
[provided that if the widow is not survived by any child, her share of family pension shall be payable to the other widows in equal shares or if there is only one such widow, in full to her}".
9.A mere reading of Rule 49(6) of the Tamil Nadu Pension Rules clearly shows that the family pension shall be payable in the case of widow or widower up to the death or re-marriage, whichever is earlier. In the case of a son until he attains the age of twenty five years and in the case of an unmarried daughter, until she attains the age of twenty five years or until she gets married whichever is earlier.
10.When the first wife is alive with her own children, the second wife who is said to have married the deceased Subramani cannot be legally considered as a lawful wife therefore, she cannot ask for pension for herself and her children for the reason that the second marriage that had taken place between the first plaintiff/second wife and the deceased P.Subramani, who was a Government employee, is not a valid marriage in the eye of law. Therefore, the question of paying family pension to the second wife and to her children cannot be legally sustainable.
11.Therefore, the substantial question of law framed by this Court at the time of entertaining the second appeal is answered against the appellants.
12.The finding rendered by the first appellate Court that the first wife and her children and the children of the second wife are entitled to the payment of 1/8 share in respect of item Nos.1 to 4 mentioned in the plaint has not been objected by the learned counsel for the appellants. But, he objected in respect of item No.5 i.e. family pension only.
13.In support of his contention he relied on the decision in RAMESHWARI DEVI V. STATE OF BIHAR AND OTHERS (AIR 2000 (1) SC 735) wherein it has been held that' Under Section 16 of Hindu Marriage Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956 property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get equal shares. The second wife taken by deceased Government employee during subsistence cannot be described a widow of deceased employee, their marriage void. Sons of the marriage between deceased employee and second wife being the legitimate sons of deceased would be entitled to the property of deceased employee in equal shares along with that of first wife and the sons born from the first marriage. That being the legal position when Hindu male dies intestate, the children of the deceased employee born out of the second wedlock would be entitled to share in the family pension and death-cum-retirement gratuity. The second wife was not entitled to anything and family pension would be admissible to minor children only till they attained majority.'.
14.In view of the above, the second wife is not entitled to anything, however, the children of the deceased employee born out of the second wedlock, would be entitled to share in the family pension and death-cum-retirement gratuity.
15.Accordingly, the appellant and the children of the appellants 2 to 5 are not eligible to get family pension, but, the children of the second wife who are treated as legitimate children are entitled to 1/8 share as held by the first appellate Court.` As per Rule 49(6)(i) of the Tamil Nadu Pension Rules, the first respondent/defendant/first wife is being a widow, the family pension is payable to her upto the date of her death or remarriage, whichever is earlier and the second wife is not entitled to any share in the family pension. While this being the settled legal position, this Court does not wish to interfere with the judgment and decree passed by the first appellate Court, accordingly, the same is confirmed.
16.The second appeal is dismissed accordingly. There is no order as to costs.
cla To
1. The Principal District Judge, Dharmapuri at Krishnagiri.
2. The Subordinate Judge, Krishnagir.
3. The Record Keeper, V.R. Section, High Court, Madras