Delhi District Court
Smt. Damyanti Devi vs Oic Records on 31 January, 2015
IN THE COURT OF MS. JASJEET KAUR, CIVIL JUDGEI
NEW DELHI DISTRICT, NEW DELHI
C.S. No.177/13
Unique Case ID No.
Smt. Damyanti Devi
w/o late Sh. Satbir Singh s/o late Sh.Nihal Singh,
R/o V&PO Anwali, Tehsil Gohana, Distt. Sonepat, Haryana.
Presently residing at : 77/22, Azad Nagar,
Near Old Housing Board Colony, Rohtak, Haryana ... Plaintiff
Versus
OIC Records, PBG, Rastrapati Bhawan, New Delhi ... Defendant
Date of Institution: 18.07.2013
Date of Reserving Judgement: 31.01.2015
Date of Judgement: 31.01.2015
SUIT FOR MANDATORY INJUNCTION
JUDGEMENT
1. Brief facts of the case from the perspective of plaintiff as discernible from the plaint are that plaintiff Damyanti Devi is the widow of late Sh. Satbir Singh an Exserviceman, who had retired from the post of Sowar from the office of the defendant, that is, the office of President's Bodyguard situated at Rashtrapati Bhawan, New Delhi on 01.06.1977 and had subsequently passed away on 09.01.2013. It is the case of the plaintiff that the plaintiff is the second wife of late Sh. Satbir Singh and prior to his death late Sh. Satbir Singh had submitted a letter dated 01.01.2013 bearing no. 315/25B/ RTK13700167 to the Officer Incharge Records of President's Body Guard through secretary Rohtak Zila Sainik Board requesting the defendant office to publish a DO Part II order in his case for inclusion of the name of the plaintiff in his service and superannuation records as one of his legal heirs.
CS No. 177/13 1 / 31However, the defendant office had vide letter no. 8108 R dated 14.02.2013 informed Ex. Sowar Sh. Satbir Singh that it was not possible to publish a DO Part II Order for inclusion of the name of the plaintiff as one of the legal heirs of Ex. Sowar (also referred to as 'Ex.Swr') Sh. Satbir Singh because the discharge book of late Sh. Satbir Singh was in the name of his first wife and the same did not bear any details regarding divorce of late Sh. Satbir Singh from his first wife or his second marriage with the plaintiff.
2. It is the case of the plaintiff that the said letter declining Sh. Satbir Singh's request for inclusion of the name of his second wife plaintiff Damyanti Devi in his discharge book is illegal as no inquiry was conducted by the defendant office before refusing to entertain the application of late Sh. Satbir Singh for inclusion of the name of the plaintiff in his superannuation records as his legal heir.
3. It is further the case of the plaintiff that the late husband of the plaintiff, Mr. Satbir Singh was first married to Smt. Chandrawati Devi D/o Sh. Parasram, R/o Village and Post office Katlupur, Sonipat, Haryana. However, he had subsequently taken divorce from his first wife with mutual consent in the presence of members of village Panchayats of villages of late Sh. Satbir Singh and Smt. Chandrawati Devi, that is, in the presence of members of the Panchayats of village Anwali and village Katlupur. Thereafter, the first wife of late Sh. Satbir Singh had got married to an unknown person in village Garhi Rajlu, Sonepat, Haryana. It is the alleged case of the plaintiff that no child was born out of the first marriage of Sh. Satbir Singh with Smt. Chandrawati Devi and Smt Chandrawati Devi has since expired as per the knowledge of plaintiff.
4. It is further the case of the plaintiff that subsequently on 20.06.1969 late Sh. Satbir Singh had got married to the plaintiff at her village Kanholi, Sonepat, Haryana in accordance with Hindu rites and out of their CS No. 177/13 2 / 31 wedlock, two sons, namely, Jitender Malik and Vikram Malik were born on 20.03.1972 and 04.12.1973 respectively. It is the alleged case of the plaintiff that she had retired from the post of teacher in a school run by Government of Haryana on 31.12.2007 and her two sons were still working in the education department of the Government of Haryana. Plaintiff has claimed that her own official documents including her pension documents, ration card, Adhar card and PAN card etc. contain the name of late Sh. Satbir Singh as her husband whereas in the official documents of late Sh. Satbir Singh, the name of the plaintiff is recorded in the column meant for the name of the spouse or husband. Plaintiff has also claimed in the plaint that she along with her children had resided with late Sh.Satbir Singh in the staff quarter allotted to late Sh.Satbir Singh by the defendant office with effect from the year 1969 till the time of superannuation of Sh.Satbir Singh in the year 1977. It is further the case of the plaintiff that after superannuation from the office of the defendant, her late husband Sh. Satbir Singh had worked as a driver in Haryana State Electricity Board now known as Haryana Bijli Vitran Nigam (hereinafter referred to as HBVN) from where Sh. Satbir Singh had again retired on 31.12.1998 and the plaintiff is receiving superannuation benefits of late Sh. Satbir Singh from HBVN, therefore, the plaintiff is also entitled to receive pension of her husband late Sh. Satbir Singh from his former employer, that is, the defendant office of the President's Bodyguard situated at Rashpati Bhawan New Delhi.
5. It has been submitted in the plaint that plaintiff is the sole beneficiary of the family pension of her late husband after his demise and the defendant is under an obligation to extend all benefits of her husband to the plaintiff. However, despite repeated requests made by the plaintiff, the defendant had failed to extend the superannuation benefits of late Sh. Satbir Singh to the plaintiff and therefore, the plaintiff had issued a legal notice CS No. 177/13 3 / 31 dated 19.03.2013 calling upon the defendant to release in her favour the superannuation benefits of late Sh. Satbir Singh and consequent upon the failure of the defendant to accede to her request for extension of superannuation benefits of late Sh. Satbir Singh in her favour, the plaintiff was compelled to institute the present suit for mandatory injunction whereby the plaintiff has sought a direction to the defendant to publish a DO Part II order in favour of the plaintiff for the purpose of inclusion of the name of the plaintiff in the superannuation record of late Ex. Sowar Sh. Satbir Singh as well as to release the family pension of late Sh. Satbir Singh in favour of the plaintiff.
6. On being served with the summons of the Court, the defendant had appeared and had filed a written statement wherein it was claimed that the suit of the plaintiff was against the law and there was no cause of action in favour of the plaintiff and against the defendant, therefore, the suit of the plaintiff was liable to be dismissed. It was further submitted by the defendants in the written statement that the suit for mandatory injunction filed by the plaintiff for seeking a direction to the defendant to publish DO Part II Order for the purpose of releasing family pension of late Ex. Sowar Sh. Satbir Singh in favour of the plaintiff was not maintainable because the plaintiff had an equally efficacious remedy available for herself in the form of a litigation for obtaining succession certificate to succeed to the estate of late Sh. Satbir Singh, a former employee of the defendant. Besides, it was contended on behalf of the defendant in the written statement that the plaintiff had not issued the mandatory notice U/s 80 of the Code of Civil Procedure 1908 (hereinafter referred to as "CPC") to the defendant before instituting the present suit and had also failed to seek permission of the Court for getting dispensed with the requirement of issuance of notice U/s 80 CPC to the defendant by moving an application U/s 80 (2) of CPC. Therefore, the suit of the plaintiff was liable to be dismissed on account of failure of the plaintiff to CS No. 177/13 4 / 31 either issue mandatory notice U/s 80 CPC to the defendant and in the alternative, the suit of the plaintiff was liable to be dismissed on account of the failure of the plaintiff to seek exemption from issuance of notice required to be issued to all government bodies U/s 80 of CPC before instituting a suit against them.
7. It was further submitted in the written statement of the defendant that Ex.Sowar late Sh. Satbir Singh, had been enrolled in the bodyguard of the Hon'ble President of India on 03.05.1962 and was discharged from service of the defendant, that is, office of President's Bodyguard on 01.06.1977 and during the period of employment with the defendant late Sh. Satbir Singh had submitted the details of his family members including records pertaining to his marriage with one Smt. Chandrawati Devi at the office of the defendant vide President's Board Guard (PBG) Part II, order bearing no. PBG/003/0088/1966 and thereafter, no application was moved by late Sh. Satbir Singh for change in the name of his legal heirs and, thus, as per the records maintained by the defendant office Smt. Chandrawati Devi was the wife of deceased ExSowar Sh. Satbir Singh.
8. Besides, it had been submitted in the written statement of the defendant that the other legal heirs of deceased Sh. Satbir Singh had not been arrayed as defendants or parties in the present suit and therefore the present suit was not maintainable on account of nonjoinder of necessary party Smt. Chandrawati Devi, who being the legally wedded wife of deceased Ex. Sowar Sh. Satbir Singh, was in fact his only legal heir. It had been further submitted on behalf of the defendant that the divorce certificate dated 29.12.2012 issued in favour of late Sh. Satbir Singh by the Sarpanch of Gram Panchayat of village Katlupur which was counter signed by the Block Development and Panchayat Officer Sh. Naresh Kumar was not maintainable in the eyes of law as a divorce decree is supposed to be obtained from a CS No. 177/13 5 / 31 competent Court of law for dissolution of any marriage and, therefore, the second marriage of late Sh. Satbir Singh with the plaintiff was also not a legal marriage as late Sh.Satbir Singh was not legally divorced from his first wife Mrs. Chandrawati Devi at the time of solemnisation of his second marriage with the plaintiff. Hence, the plaintiff was not entitled to be inducted as a legal heir of late Sh. Satbir Singh in his superannuation record. It was thus prayed by the defendant offices in its written statement that the suit of the plaintiff was liable to be dismissed with costs.
9. Plaintiff had not filed any replication to the written statement of the defendant.
10. On the basis of pleadings of the parties, following issues were framed by the learned Predecessor Court vide Order dated 14.03.2014 :
1. Whether the suit is barred due to non compliance of serving statutory notice U/s. 80 of CPC ?
2. Whether the suit is bad for non joinder of other legal heirs of deceased Ex. Swr Satbir Singh? OPD.
3. Whether the present suit is not maintainable on the ground of Section 41(h) of Specific Relief Act as the plaintiff has equal and efficacious remedy available? OPD.
4. Whether the plaintiff Smt. Damyanti Devi is the wife of Late Sh. Satbir Singh and is the sole beneficiary of his pension and other benefits to be taken from the defendant? OPP.
5. Relief.
11. After the framing of issues, an opportunity was given to the plaintiff as well as to the defendant to prove their respective versions of the case by leading evidence in support of the same. Plaintiff Damyanti Devi examined herself as PW1 in support of her case. A brief account of her deposition is reproduced below:
12. PW1 Damyanti Devi deposed by way of affidavit Ex.PW1/A wherein she had reiterated the facts narrated in the plaint. PW1 had relied CS No. 177/13 6 / 31 upon following documents in support of her case : i. A copy of death certificate of late Sh. Satbir Singh Mark A. ii. Letter dated 01.01.2013 accompanied with declaration form, nomination form, marriage certificate in respect of solemnisation of second marriage of Ex. Sowar Satbir Singh with the plaintiff issued by gram panchayat of his village and divorce certificate dated 29.12.2012 issued by sarpanch of Gram Panchayat of village Katlupur in respect of divorce of late Sh. Satbir Singh and Smt. Chandrawati Devi collectively Ex.PW1/2 whereby deceased Ex. Sowar Sh. Satbir Singh had requested the defendant, that is, the office of President's Bodyguard to publish DO PART II Order in favour of the plaintiff and her sons. iii. A copy of letter dated 14.02.2013 Mark B written by Record officer of the defendant to Zila Sainik Board, Rohtak, Haryana whereby the defendant had informed Zila Sainik Board, Rohtak, Haryana that on 11.07.1966 during his employment with the defendant office and till the time of his discharge from service in the year 1977, Ex. Sowar Sh. Satbir Singh had nominated his first wife Smt. Chandrawati Devi as the beneficiary for the purpose of grant of family pension and other pension benefits and had not got DO PART II Order published in respect of his divorce from Smt. Chandrawati Devi as well as in respect of solemnisation of his second marriage with plaintiff Smt. Damyanti Devi and therefore the defendant office had expressed its inability to take any action for processing the request of late Sh. Satbir Singh made vide Ex.PW1/2 for publication of DO PART II Order in favour of the plaintiff in order to include the name of plaintiff in his superannuation record.
iv. Copy of certificate issued by Uttar Haryana Bijli Vitran Nigam in respect of the fact that plaintiff Damyanti Devi was drawing family pension of late Sh. Satbir Singh from the office of Uttar Haryana Bijli Vitran Nigam with effect from 10.01.2013 Ex.PW1/4.
v. Pension payment Order dated 05.12.2007 of plaintiff Damyanti Devi Ex.PW1/5 issued by her employer containing name of late Sh. Satbir Singh as her husband.
vi. Copy of matriculation certificate cum mark sheet of plaintiff Damyanti Devi containing the name of late Sh. Satbir Singh as her father Ex.PW1/6.
vii. Copy of matriculation certificate cum mark sheet of Sh. Vikram Singh Malik, son of the plaintiff Mark C containing name of deceased Satbir Singh as the father of Sh. Vikram Singh.
viii.Copy of matriculation certificate cum mark sheet of Sh. Jitender Malik, son of the plaintiff, Mark D containing name of deceased Sh. Satbir Singh as the father of Sh. Jitender Malik.
CS No. 177/13 7 / 31ix. Copy of Ration card of late Sh. Satbir Singh containing name of plaintiff Smt. Damyanti Devi as his wife.
x. Copy of Pan Card of late Sh. Satbir Singh Ex.PW1/10.
xi. Copy of Voter's Identity Card/Election Identity Card of Late Sh. Satbir Singh Ex.PW1/11.
xii. Copy of Pan Card of plaintiff Damyanti Devi Ex.PW1/12. xiii.Copy of Aadhar Card of plaintiff Damyanti Devi Ex.PW1/13 containing the name of late Sh. Satbir Singh as her husband.
xiv.Legal notice Ex.PW1/14 issued by the plaintiff to the defendant, that is, Officer Incharge Records, President's Bodyguard calling upon the defendant to publish DO Part II Order in her favour in discharge of application of late Sh. Satbir Singh moved for nominating the plaintiff for receiving family pension and other superannuation benefits of late Sh. Satbir Singh.
xv. Reply to legal notice Ex.PW1/14 issued by the plaintiff dated 16.04.2013 Ex.PW1/15 whereby the defendant office had declined the request of plaintiff to publish DO Part II Order of late Sh. Satbir Singh in her favour on ground that there was no record in the defendant office of divorce of Sh. Satbir Singh from his first wife Smt. Chandrawati as well as about the solemnisation of second marriage of Sh. Satbir Singh with plaintiff Smt. Damyanti Devi.
13. In her cross examination by Ms. Anju Gupta, learned counsel for the defendant, PW1 deposed that her husband late Sh. Satbir Singh had got married twice, firstly with Smt. Chandrawati Devi @ Smt. Indirawati and secondly with herself. She stated that the first wife of her husband late Sh. Satbir Singh, that is, Smt. Chandrawati Devi had obtained divorce from late Sh. Satbir Singh at a panchayat held in the village prior to her own marriage with Sh. Satbir Singh which had taken place in the year 1969. She stated that no decree of divorce was obtained either by her husband or by his first wife, namely, Smt. Chandrawati @ Smt. Indrawati from a competent court. She deposed that to the best of her knowledge, the first wife of Sh. Satbir Singh had got separated from him sometime in the year 1964 and there was no issue from the wedlock of Sh. Satbir Singh and Smt. Chandrawati. She deposed that her husband had not got recorded her name as his wife in the CS No. 177/13 8 / 31 office records of the defendant office of President's Bodyguard during his employment with the defendant. She stated that after retirement from the defendant office her husband had got employment in Haryana Bijli Vitran Nigam. She admitted that she had no proof from any court in respect of her status as the wife (widow) of late Sh. Satbir Singh Malik. She clarified that the name of her father was also Satbir Singh. She admitted that she had not produced any of the persons who had signed her marriage certificate dated 21.12.2012 or had signed any other documents produced by her in support of her claim for family pension of late Sh. Satbir Singh. She denied the suggestion that in order to illegally claim the family pension and other superannuation benefits of late Sh. Sabir Singh, she was claiming herself to be the legally wedded wife of late Sh. Satbir Singh.
14. After the plaintiff closed her evidence, an opportunity was given to the defendant to prove its version of the case by leading evidence in support of the same. Defendant examined one witness, namely, Raseldar Vikram Singh in support of its case. A brief account of his deposition is reproduced below:
15. DW1 Raseldar Vikram Singh deposed by way of affidavit Ex.DW1/A wherein he had reiterated the facts narrated in the written statement. DW1 had relied upon the following document in support of his testimony :
(i) Original nomination form dated 11.07.1966 of Ex.Sowar Sh. Satbir Singh Ex.DW1/1 obtained from his service record in respect of nomination made by late ExSowar Sh. Satbir Singh in favour of his family members.
16. In his cross examination by Sh. Vikas Deep, learned counsel for the plaintiff, DW1 deposed that after the death of Ex. Sowar Sh. Satbir Singh on 09.01.2013 his pension benefits or any other benefits were never sent to Smt. Chandrawati @Indrawati as she had not claimed the same. He clarified CS No. 177/13 9 / 31 that no complaint was ever lodged in the defendant's office by Smt. Chandrawati or any of her legal heirs. He deposed that he had no knowledge about divorce of Smt. Chandrawati @ Indrawati and Sh. Satbir Singh with mutual consent as well as about the solemnization of the second marriage of Ex.Sowar Sh. Satbir Singh with Smt. Damyanti Devi. He further deposed that he had no knowledge of the fact whether Smt. Chandrawati had expired long back or not. He also stated that he had no knowledge of the fact whether Sh. Satbir Singh had got married to the plaintiff in the year 1969 at village Kanholi, Sonepat, Haryana or not. He expressed his inability to tell that whether out of the wedlock of the plaintiff and Ex.Sowar Sh. Satbir Singh two sons, namely, Jitender Malik and Vikram Malik were born on 20.03.1972 and 04.12.1973 or not. He further expressed his inability to tell whether all documents of the plaintiff including her pension documents, Ration Card, Aadhar Card, PAN Card and the Matriculation Certificate issued in her favour by Punjab University contained the name of Sh. Satbir Singh as her husband or not. DW1 also expressed his inability to tell whether after retirement from the defendant office, that is, the office of the President's Bodyguard Ex.Sowar Sh. Satbir Singh had worked in Haryana State Electricity Board (now known as Haryana Bijli Vitran Nigam) or not and whether late Sh. Satbir Singh had retired from the said office of Haryana Bijli Vitran Nigam on 31.12.1998 or not. He also expressed his inability to tell whether the plaintiff was drawing pension benefits of late Sh. Satbir Singh from his second employer Haryana State Electricity Board or not. He further expressed his inability to tell whether any pension payment order dated 05.12.2007 issued in the name of late Sh. Satbir Singh by Haryana State Electricity Board contained the name of the plaintiff as his wife or not.
17. DW1 Raseldar Vikram Singh also expressed his inability to tell whether the matriculation certificate of both sons of the plaintiff contained the CS No. 177/13 10 / 31 name of late Ex.Sowar Sh. Satbir Singh as their father or not. He admitted that vide letter Ex.PW1/2 late Sh. Satbir Singh had requested Zila Sainik Board Rohtak to publish DO Part II Order in favour of his wife and sons wherein the name of his wife had been mentioned as Smt. Damyanti Devi and the names of his sons had been mentioned as Sh. Jitender Malik and Sh. Vikram Malik and the said request had been forwarded to his office by Zila Sanik Board Rohtak. He denied the suggestion that plaintiff was entitled to all superannuation benefits of late Ex.Sowar Sh. Satbir Singh being his wife.
18. After the defendant closed its evidence, final arguments were heard from Sh. Vikas Deep learned counsel for plaintiff as well as from Ms. Anju Gupta learned counsel for defendant yesterday on 30.01.2015.
19. Learned counsel for the plaintiff has argued that plaintiff has successfully proved her case by examining herself as PW1 and relying upon letter Ex. PW1/2 whereby her late husband Sh. Satbir Singh had requested the defendant office to publish DO Part II Order in favour of the plaintiff through Zila Sainik Board Rohtak and this letter Ex.PW1/2 entitles the plaintiff to receive family pension as well as other superannuation benefits of late Sh. Satbir Singh from the defendant office.
20. Learned counsel for plaintiff has further argued that plaintiff has also produced her family pension documents issued in her favour by Haryana State Electricity Board whereby she was receiving family pension from the second employer of late Sh. Satbir Singh, that is, Haryana State Electricity Board or the Uttar Haryana Bijli Vitran Nigam. Besides, it has been submitted by learned counsel for plaintiff that even in the Aadhar Card issued in the name of plaintiff, the name of Sh. Satbir Singh has been mentioned as the name of her husband. Therefore, learned counsel for the plaintiff has submitted that the plaintiff has produced sufficient evidence in support of her claim that she was the legally wedded wife of late Sh. Satbir Singh and was CS No. 177/13 11 / 31 entitled to receive family pension of Sh. Satbir Singh to be paid by the defendant office of President's Bodyguard upon death of Ex. Sowar Sh. Satbir Singh to his wife. Hence, learned counsel for plaintiff has submitted that plaintiff is entitled to a decree of mandatory injunction in her favour and against the defendant thereby directing the defendant to publish DO Part II Order for release of family pension of late Sh. Satbir Singh in favour of the plaintiff.
21. Per contra, learned counsel for the defendant has argued that in the service and superannuation record of Ex. Sowar Sh. Satbir Singh, the name of his wife was mentioned as Smt. Chandrawati Devi. It has been further argued by learned counsel for the defendant that late Ex. Sowar Sh. Satbir Singh had submitted details in respect of his marriage with Smt. Chandrawati Devi with the defendant office vide President's Bodyguard Part II Order bearing number PBG/003/0088/1966 and thereafter Sh. Satbir Singh had never submitted any application for change in the name of his wife in his service record. Moreover, learned counsel for the defendant has also submitted that late Ex. Sowar Sh. Satbir Singh had never submitted with the defendant office any decree of divorce whereby he had obtained divorce from Smt. Chandrawati Devi nor had he submitted any valid marriage certificate in respect of his second marriage with plaintiff Damyanti Devi and therefore there was no occasion for change in name of the wife of late Sh. Satbir Singh in the office records of the defendant office.
22. Learned defence counsel has further argued that the plaintiff has also failed to produce any decree of divorce obtained by late Sh.Satbir from any court of law for dissolution of marriage of late Ex.Sowar Sh. Satbir Singh and his first wife Smt. Chandrawati Devi nor has the plaintiff supported her request for publication of DO Part II Order in her favour with any valid marriage certificate issued in favour of the plaintiff in respect of her marriage CS No. 177/13 12 / 31 with late Ex.Sowar Sh. Satbir Singh. Therefore, learned defence counsel has submitted that there is no ground for release of family pension and other superannuation benefits of late Sh. Satbir Singh in favour of the plaintiff and the suit of plaintiff is liable to be dismissed.
23. I have considered the rival submissions of parties and perused the entire evidence led by the plaintiff and the defendant in support of their respective versions of the case.
24. My issue wise findings based on my appreciation of the entire evidence led by parties are reproduced below: Issue No.1 Whether the suit is barred due to non compliance of serving statutory notice U/s. 80 of CPC?
25. The onus of proving this issue was not specifically put on any of the parties by the learned Predecessor Court. In order to prove the compliance of statutory provisions of section 80 CPC, the plaintiff has placed on record legal notice Ex. PW1/14 issued by the learned counsel for plaintiff to the Officer Incharge of the defendant office of President's Bodyguard. Although the said legal notice Ex.PW1/14 dated 19.03.2013 does not contain an averment in its title of the fact that the said notice has been issued under the provisions of section 80 CPC. However, by the said notice the plaintiff has called upon the officer in charge of the defendant office to publish DO Part II Order in favour of the plaintiff for the purpose of releasing the family pension of late Ex. Sowar Sh. Satbir Singh in favour of the plaintiff within statutory period failing which the plaintiff had reserved her right to approach a competent court of law for publication of DO Part II Order in her favour at the cost and consequences of the defendant office.
26. From the language of legal notice Ex.PW1/14, it is evident that the plaintiff has made her intention clear of approaching a court of law in case CS No. 177/13 13 / 31 of failure of officer in charge of records of the defendant office to redress her grievances regarding nonpublication of DO Part II Order pertaining to release of family pension of late Ex. Sowar Sh. Satbir Singh in her favour by the defendant office within statutory period. A perusal of the suit reveals that the same has been instituted on 18.07.2013 after expiry of four months from the date of issuance of legal notice Ex.PW1/14 by the counsel for plaintiff to the defendant. A perusal of provisions of section 80 CPC reveals that before instituting any suit against any Government or against any public servant a legal notice has to be instituted to the secretary of the said Government or to the said public servant as the case may be at least two months prior to the date of institution of the suit. In the present case, legal notice Ex.PW1/14 has been issued to the Officer Incharge (Records) of the defendant, that is, the office of President's Bodyguard on 19.03.2013. Thus, a legal notice has been issued to the concerned public servant, that is, Officer Incharge (Records) of the defendant office on 19.03.2013 nearly four months prior to the institution of the present suit and therefore the requirement of issuance of legal notice u/s 80 CPC before institution of the suit has been substantially complied with by the plaintiff. Although, the legal notice Ex.PW1/14 does not contain in its title, any mention of the fact that the said notice has been issued under the provisions of section 80 CPC. However, irrespective of the nomenclature of the legal notice Ex.PW1/14, the said notice contains correct names of parties, that is, the plaintiff and the public authority to which it has been issued. The notice also comprehensively details the grievance of the plaintiff against the concerned public servant or the public authority and also the plaintiff has unequivocally explained the nature of the relief sought from the public authority or public servant to whom the legal notice has been addressed. When the said legal notice Ex.PW1/14 is juxtaposed with the plaint of the suit filed by the plaintiff, it becomes evident that the names of the parties, that is, CS No. 177/13 14 / 31 the names of the plaintiff and the defendant as well as the nature of the grievance and the essence of the relief sought by the plaintiff from the defendant are the same in the legal notice Ex.PW1/14 and in the plaint of the suit filed by the plaintiff. In these circumstances, it can be safely concluded that the plaintiff has substantially complied with the statutory requirement of issuing notice u/s 80 CPC by issuing legal notice Ex.PW1/4 even without mentioning in the legal notice Ex.PW1/14 that the said notice has been issued u/s 80 of CPC.
27. In this context, it has been held by Hon'ble Supreme Court of India in the decided case of Ghanshyam Dass and others v. Dominion of India and others AIR 1984 Supreme Court 1004 that while dealing with the issue of identity of the person who has issued the notice under section 80 CPC, as well as the issue identity of the public servant to whom the said notice has been issued, the rule of strict compliance has to be applied and it has to be strictly scrutinized whether the person who has issued the legal notice u/s 80 CPC is the same person who has filed the suit against the same government or public servant to whom the said notice u/s 80 of CPC has been issued or addressed. However, while dealing with the issue of identity between the cause of action and the reliefs claimed in the suit as well as in the notice u/s 80 CPC issued prior to the filing of the suit, the rule of substantial compliance has to be applied and it has to be substantially seen whether the cause of action and the reliefs claimed in the notice u/s 80 CPC are substantially the same as the cause of action and the reliefs claimed in the suit filed in a court of law pursuant to the said notice u/s 80 CPC. Relevant observations made by Hon'ble Supreme Court of India in paras 8 and 11 of the judgement passed in the case of Ghanshyam Dass and others v. Dominion of India and others (Supra) are noteworthy in this context and are reproduced below: CS No. 177/13 15 / 31
8. As to the requirement that the notice must state the cause of action and the reliefs claimed, there is a large body of decisions laying down that a notice under the section should be held to be sufficient if it substantially fulfils its object in informing the parties concerned of the nature of the suit to be filed. In consonance with this view, this Court in Dhian Singh Sobha Singh & Anr. v. Union of India, 1958 SCR 781 : (AIR 1958 SC 274), Union of India v. Jeewan Ram, AIR 1958 SC 905, State of Madras v. C.P. Agencies, air 1960 SC 1309 and Amar Nath v. Union of India, (1963) 1 SCR 657 : (AIR 1963 SC 424) has held that though the terms of the section have to be strictly complied with, that does not mean that the notice should be scrutinized in a pedantic manner or in a manner divorced from common sense. On this principle, it has been held that notice which states the cause of action and the reliefs are described in the annexed copy of the plaint (which forms part of the notice) though defective in form, complies substantially with the section. The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation.
11. In the ultimate analysis, the question as to whether a notice under Section 80 of the Code is valid or not is a question of judicial construction. The Privy Council and this Court have applied the rule of strict compliance in dealing with the question of identity of the person who issues the notice with the person who brings the suit. This Court has however adopted the rule of substantial compliance in dealing with the requirement that there must be identity between the cause of action and the reliefs claimed in the notice as well as in the plaint. As already stated, the Court has held that notice under this section should be held to be sufficient if it substantially fulfils its object of informing the parties concerned of the nature of the suit to be filed. On this principle, it has been held that though the terms of the section have to be strictly complied with, that does not mean that the notice should be scrutinized in a pedantic manner divorced from common sense. The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would the recipient to avert the litigation.
28. A similar situation had come up for consideration before Hon'ble Supreme Court of India in the case of Ragunath Dass Vs. Union of India and Anr decided on 26 July 1968, 1969 AIR 674, 1969 SCR (1) 450 wherein the Hon'ble High Court of Allahabad had dismissed the suit of the plaintiff on ground of non compliance of provisions of section 80 of CPC. While deciding the appeal filed against the Order of Hon'ble High Court of Allahabad, the Hon'ble Apex Court has observed that the provision of Section 80 CPC had been enacted to afford an opportunity to the concerned CS No. 177/13 16 / 31 government or public servant to avoid litigation by redressing the grievances of the person issuing legal notice before the filing of any suit in a Court of law by the person issuing the legal notice. However, the said requirements of issuance of notice u/s 80 CPC prior to the institution should not be used as a trap against ignorant and illiterate persons by strictly interpreting the provision of section 80 of CPC and utilizing the same to dismiss cases instituted against any government or public servant.
The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity' to reconsider the legal position and to make amends or settle the claim, if so advised without litigation. The legislative intention behind that section in our opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opportunity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is advancement of justice. The provisions in s. 80, Civil Procedure Code are not intended to. be used as booby traps against ignorant and illiterate persons. In this case we are concerned with a narrow question. Has the person mentioned in the notice as plainsong brought the present suit or is he someone else ? This question has to be decided by reading the notice as a whole in a reasonable manner.
29. Applying the ratio of abovecited decision passed in the case of Ghanshyam Dass and others v. Dominion of India and others (Supra) and Ragunath Dass vs Union of India and Anr. (Supra) to the facts of the present case, it can be safely concluded that the provision of section 80 of CPC has been substantially complied with by the plaintiff since there is an identity in the name of the person issuing the legal notice EX.PW1/14 and the name of the plaintiff in the present suit as well as in the name of the public servant to whom legal notice has been issued and the name of the defendant in the present suit and also in view of the fact that the nature of grievance of the plaintiff and the relief sought from the defendant as stated in the legal notice Ex.PW1/14 are substantially similar to the cause of action and the relief claimed in the present suit. Therefore, in view of the facts and circumstances CS No. 177/13 17 / 31 detailed above, it can be safely concluded that the plaintiff has substantially complied with the requirement of issuing statutory notice u/s 80 CPC at least two months prior to the institution of the present suit by issuing legal notice dated 19.03.2013 Ex.PW1/14 irrespective of the fact that said notice Ex.PW1/14 does not contain in its title, an averment of the fact that the said notice Ex.PW1/14 has been issued under the provisions of section 80 CPC.
30. Hence, issue no. 1 is accordingly decided in favour of the plaintiff and against the defendant by arriving at a finding that the present suit is maintainable as the plaintiff has substantially complied with the requirement of issuance of legal notice u/s 80 CPC by issuing legal notice Ex.PW1/14 before instituting the present suit against the defendant, a public servant (or authority) for redressal of her grievances of non publication of DO Part II Order for release of family pension of late Ex.Sowar Sh.Satbir Singh in her favour.
Issue No.2 Whether the suit is bad for non joinder of other legal heirs of deceased Ex. Swr Satbir Singh? OPD.
31. The onus of proving this issue was on the defendant. The defendant has led no evidence in support of its claim that the present suit is not maintainable or bad in law on account of non joinder of other legal heirs of deceased Satbir Singh. At the very outset, it is pertinent to mention that it is the admitted case of defendant that no other legal heir of Sh. Satbir Singh had approached the defendant office for claiming his or her rights over the family pension and other superannuation benefits of late Sh. Satbir Singh.
32. Although, the defendant has led no evidence in support of its claim that the present suit is bad for non joinder of other legal heirs of deceased Satbir Singh. However, it is pertinent to mention that any superannuation benefits of a Government employee are supposed to be equally distributed amongst his legal heirs as per the service rules applicable CS No. 177/13 18 / 31 to the concerned employee whereas the family pension of a deceased Government employee is supposed to be released in favour of the legally wedded spouse of the deceased Government Employee in accordance with the service rules applicable to the deceased government servant and in the present case one Smt. Chandrawati Devi is the legally wedded wife of late Sh. Satbir Singh as per the service records of Ex.Sowar Sh.Satbir Singh maintained by defendant office. Therefore, she is a necessary party for arriving at a just decision in the present case.
33. It is the alleged case of the plaintiff that Smt. Chandrawati Devi has also expired and there was no issue or legal heir born from the wedlock of Ex. Sowar Sh. Satbir Singh and Smt. Chandrawati Devi. However, plaintiff has failed to prove the death of Smt. Chandrawati Devi by producing any death certificate issued in respect of her death by the concerned municipal authorities within whose territorial jurisdiction Smt. Chandrawati Devi had allegedly expired. Besides, the plaintiff has also not placed on Court record any admissible evidence in support of her submission that Ex. Sowar Sh. Satbir Singh had obtained divorce from his first wife Smt. Chandrawati Devi before solemnising his alleged second marriage with the plaintiff. In these circumstances, plaintiff should have made Smt. Chandrawati Devi, a party to the present suit or should have otherwise proved the factum of her death by summoning the relevant records pertaining to her death from the concerned Municipality within the territorial jurisdiction of which Smt. Chandrawati Devi had allegedly expired and where her death had been duly registered. Thus, from a perusal of the entire evidence led by the plaintiff, it is evident that the plaintiff has failed to prove the factum of death of Smt. Chandrawati Devi as well as factum of alleged divorce of Smt. Chandrawati Devi from late Ex. Sowar Sh. Satbir Singh. The suit is therefore bad in law on account of her non joinder, particularly, in view of the fact that the plaintiff has also not CS No. 177/13 19 / 31 placed on record any decree of divorce whereby the first marriage of Sh. Satbir Singh with Smt. Chandrawati Devi had been dissolved. In these circumstances, Smt. Chandrawati Devi continues to be a legal heir of late Sh. Satbir Singh in the office records of the defendant office and is a necessary party for arriving at a just decision in the present suit. Hence, the issue no. 2 is accordingly decided in favour of the defendant and against the plaintiff by arriving at a finding that the present suit is bad in law for non joinder of other legal heir of deceased Ex. Sowar Satbir Singh, namely, Smt. Chandrawati Devi.
Issue No.3 Whether the present suit is not maintainable on the ground of Section 41 (h) of Specific Relief Act as the plaintiff has equal and efficacious remedy available ? OPD.
34. The onus of proving this issue was on the defendant. In the written statement of the defendant it has been submitted that the plaintiff had an equal and efficacious remedy available for herself in the form of obtaining a succession certificate from the succession court in order to succeed to the estate of late Sh. Satbir Singh. However, the plaintiff had deliberately not exhausted her remedy of approaching a Court of competent jurisdiction for obtaining a succession certificate in order to succeed to the estate of late Ex.Sowar Sh. Satbir Singh before approaching the present Court for seeking a mandatory injunction against the defendant and thereby seeking a direction to the defendant to publish DO Part II Order in favour of the plaintiff for the purpose of release of family pension of late Ex. Sowar Sh. Satbir Singh in favour of the plaintiff.
35. In this context, it is pertinent to mention that the defendant has led no separate evidence to prove that the remedy of obtaining a succession certificate from a competent court for the purpose of suceeding to the estate of deceased Ex. Sowar Sh. Satbir Singh has not been exhausted by the CS No. 177/13 20 / 31 plaintiff. However, it has been pointed out by learned counsel for the defendant that the plaintiff has not placed on record any succession certificate issued in her favour in support of her claim that she is entitled to receive family pension of late Ex. Sowar Sh. Satbir Singh.
36. Before arriving at a finding whether the present suit is barred by the provisions of section 41(h) of Specific Relief Act, it is necessary to examine the law on the scope of the provision of section 41(h) of the Specific Relief Act. In this respect, it is pertinent to note that section 41(h) of the Specific Relief Act provides that when an equal and efficacious relief can be obtained by any person through a usual mode of proceedings then a mandatory injunction cannot be granted to provide the same relief to the said person. Section 41 (h) of the Specific Relief Act is reproduced below in this context: 41 Injunction when refused. An injunction cannot be granted
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust.
37. From a perusal of the above cited provisions of section 41(h) of the Specific Relief Act, it can be safely concluded that an injunction cannot be granted for a relief which can be obtained through other usual modes of proceedings, provided that the other mode of proceedings through which the same relief can be obtained is equally efficacious.
38. In order to appreciate the aforecited provision of section 41(h) of the Specific Relief Act, it is necessary to refer to the law of precedents on the subject. In this context, it is pertinent to mention that while endorsing the mandate of the provision of Section 41(h) of the Specific Relief Act, Hon'ble High Court of Punjab and Haryana had dismissed a suit wherein the plaintiff had sought a mandatory injunction for grant of share in a coparcenory property and had observed that when the property which was the subject matter of the suit was an ancestral and coparcenery property, then the CS No. 177/13 21 / 31 plaintiff had a right to claim his share in the suit property by way of a suit for partition and hence, a suit for injunction for seeking the same relief of share in coparcenery property was not maintainable. Relevant extract of observations made by Hon'ble High Court of Punjab and Haryana in this case of Kishan Singh vs Sucha Singh (2008) 2 PLR 707 are reproduced below :
41. Injunction when refused.Any injunction cannot be granted xxx xxx xxx
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of beach of trust; This section also creates an impediment for the Court to grant injunction where equally efficacious remedy is available to the plaintiff. It is not in dispute that Kishan Singh, plaintiffappellant herein is one of the reversioners and his status is equal to Sucha Singh. The property, subject matter of the suit, was also ancestral and coparcenary property in the hands of Kunda Singh. Kunda Singh had no male issue at the time of his death in the year 1940 and the succession being governed by unmodified Hindu Law his agnates within five degrees, could claim the right over the property. Kishan Singh and Sucha Singh, being such agnates were under law entitled to claim their right But Kishan Singh abandoned his right by suffering a decree against him in a suit filed by Sucha Singh, being Civil Suit No. 529 of 1968. Validity of the earlier decree is not in question and the decree having attained finality all findings are binding upon Kishan Singh. Even in absence of a decree, only way to assert right over the property was/is to seek partition of the property or a declaration of right with joint possession. These are the efficacious remedies available under law. None of the efficacious remedies have been availed. Hence bar of Section 41(h) of the Specific Relief Act will operate in the present case. For this reason also, suit filed by the appellant was not maintainable and rightly dismissed by the First Appellate Court.
39. In another case wherein a plaintiff had brought suit for injunction against his father, the karta of a Hindu Undivided Family for restraining the karta from alienating the house property belonging to Hindu Undivided family on ground of a legal necessity, the said suit was held to be not maintainable by the Hon'ble Apex Court which had observed that the plaintiff, being a coparcener in the Hindu Undivided family had got the remedy of challenging the alienation of the joint family property and getting the same set aside.
40. Relevant extract of Observations made by Hon'ble Apex Court CS No. 177/13 22 / 31 in this decided case of Sushil Kumar & Anr. Vs. Ram Prakash & Ors. AIR 1988 SC 576 are noteworthy in this context and are reproduced below: Thus the relief sought for is to restrain by permanent injunction the Karta of the Joint Hindu Mitakshara Family, i.e. defendant No. 1, from selling or alienating the house property in question. The defendant No. 1 as Karta of the joint Hindu family has undoubtedly, the power to alienate the joint family property for legal necessity or for the benefit of the estate as well as for meeting antecedent debts. The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu Undivided Family even if there is a genuine legal necessity for such transfer. If such a suit for injunction is held maintainable the effect wi be that whenever the father as Karta of the Joint Hindu coparcener property will propose to sell such property owing to a bona fide legal necessity, any coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity until and unless that suit is decided.
The judgment in Shiv Kumar Mool Chand Arora v. Mool Chand Jaswant Singh, AIR 1972 (Pub. & Har.) 147 wherein it was held that a suit for permanent injunction against the father to restrain him from alienating the joint Hindu family property was maintainable has been offset by the Division Bench in Jujhar Singh v. Ciani Talok Singh, (supra) wherein it has been held that a suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity was not maintainable because the coparcener had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. Following this decision the High Court allowed the appeal holding that the suit was not maintainable reversing the judgment and decree of the Trial Court. We do not find any infirmity in the findings arrived at by the High Court.
41. In the light of aforecited observations made by Hon'ble High Court of Punjab and Haryana and Hon'ble Supreme Court of India in the decided cases of Kishan Singh vs Sucha Singh (Supra) and Sushil Kumar & Anr. Vs. Ram Prakash & Ors (Supra) respectively, it can be safely concluded that when a plaintiff has an equally efficacious remedy available for grant of a particular relief through usual mode of legal proceedings then a suit for injunction cannot be filed for obtaining the same relief. Injunction can only be granted when there is no alternate equally efficacious remedy available to the plaintiff. In the present case, the plaintiff has claimed her rights to the family pension of late Ex.Sowar Sh. Satbir Singh in the capacity CS No. 177/13 23 / 31 of his legally wedded wife or widow and ordinarily a legally wedded wife is entitled to family pension and superannuation benefits of her husband on the basis of nomination made by the husband in his service and superannuation records subject to the provisions of the service rules applicable to the deceased husband. However, in the present case, plaintiff's name has not been mentioned in the nomination form filled by late Ex. Sowar Sh. Satbir Singh in his service records. On the contrary, the name of one Smt. Chandrawati Devi is mentioned as the wife of late Ex. Sowar Sh. Satbir Singh in the records of the defendant office. Moreover, the plaintiff has also failed to prove that Smt. Chandrawati Devi, the first wife of Sh. Satbir Singh had expired by producing the death certificate of Smt. Chandrawati Devi. Besides, the plaintiff has claimed her rights to the family pension of late Sh. Satbir Singh on the basis of her claim that late Sh. Satbir Singh had obtained divorce from Smt. Chandrawati Devi. However, no decree of divorce passed by any court of law for the purpose of dissolving the marriage of late Sh. Satbir Singh and Smt. Chandrawati Devi has been placed on record by the plaintiff in order to prove her claim that late Ex. Sowar Sh. Satbir Singh had obtained divorce from his first wife Smt. Chandrawati Devi and therefore the plaintiff herself was entitled to receive family pension of late Sh. Satbir Singh. Nevertheless plaintiff still had an equally efficacious remedy available to her for grant of relief claimed through the present suit and this remedy existed in the form of usual mode of proceedings, that is, a suit for obtaining a succession certificate to succeed to the estates of late Sh. Satbir Singh wherein the entitlement of the plaintiff to receive the family pension of late Ex.Sowar Sh.Satbir Singh would have been decided on merit after giving due notice to all effected parties.
42. Had it been the case of the plaintiff that she had duly proved her entitlement to receive family pension of late Ex.Sowar Sh.Satbir Singh by CS No. 177/13 24 / 31 producing a succession certificate issued in her favour by a competent Court and the defendant was still not releasing the family pension of late Sh.Satbir Singh in her favour only then, the plaintiff could have approached this Court to seek a mandatory injunction in her favour and against the defendant for the purpose of directing the defendant to release the family pension of late Sh.Satbir Singh in favour of the plaintiff. However, as discussed above, the plaintiff has neither produced a succession certificate to succeed to the estate of late Ex.Sowar Sh.Satbir Singh issued in her favour by a competent Court nor has the plaintiff duly proved the factum of death of Smt. Chandrawati Devi, the first wife of late Ex.Sowar Sh.Satbir Singh. Additionally, the plaintiff has also not proved the factum of dissolution of marriage of Ex.Sowar Sh.Satbir Singh and his first wife Smt. Chandrawati Devi by a decree of divorce passed by a competent Court. In these circumstances, when the relief sought by the plaintiff can be obtained by her through an equally efficacious usual mode of proceedings in the form of a suit for obtaining succession certificate to succeed to the estate of late Ex.Sowar Sh.Satbir Singh, then a mandatory injunction directing the defendant to publish DO Part II Order for release of family pension of Sh.Satbir Singh in favour of the plaintiff cannot be granted on account of same being barred by the provisions of section 41 (h) of the Specific Relief Act.
43. Issue no. 3 is accordingly decided in favour of the defendant and against the plaintiff by arriving at a finding that the present suit is barred by the provisions of section 41 (h) of the Specific Relief Act as an equally efficacious remedy is available to the plaintiff in the form of a suit for obtaining succession certificate to succeed to the estates of her deceased husband.
Issue No.4 Whether the plaintiff Smt. Damyanti Devi is the wife of late Sh. Satbir Singh and is the sole beneficiary of his pension and other benefits to be taken from the defendant ? OPP.
CS No. 177/13 25 / 3144. The onus of proving this issue was on the plaintiff. In order to prove that plaintiff is the legally wedded wife of late Ex.Sowar Sh. Satbir Singh, the plaintiff has relied upon documents collectively Ex.PW1/2 which include a marriage certificate issued in favour of plaintiff Damyanti Devi by a sarpanch of gram panchayat of a village in Rohtak district which has been allegdly counter signed by the Block Development Officer of Rohtak district. However, the said certificate of the marriage is dated 20.12.2012 whereas it is the case of plaintiff that she had got married to late Sh. Satbir Singh on 20.06.1969. Hence, the said marriage certificate has been issued in the year 2012 nearly 43 years after the solemnization of alleged marriage of late Sh. Satbir Singh with the plaintiff. In these circumstances, it is not clear whether the person who has issued the marriage certificate, that is, the sarpanch concerned was actually present at the time of solemnization of alleged marriage of late Sh. Satbir Singh with the plaintiff or not. Moreover, two persons, namely, Sarup Singh Ahlawat and Subedar I.S. Gehlawat have signed as witness on the said marriage certificate issued nearly 43 years after the solemnization of alleged marriage of late Sh. Satbir Singh with plaintiff Damyanti Devi. However, from the said marriage certificate issued 43 years after the solemnization of alleged marriage of plaintiff Damyanti Devi and late Sh. Satbir Singh, it is not clear whether the persons, named, Sarup Singh Ahlawat and Subedar I.S. Gehlawat who have signed the marriage certificate in question as witnesses were actually present at the time of solemnisation of marriage of the plaintiff with late Ex.Sowar Sh.Satbir Singh or not. Also, neither the sarpanch of the gram panchayat concerned nor the two witnesses namely, Sarup Singh Ahlawat and Subedar I.S. Gehlawat have been examined in the court by the plaintiff in support of her claim that she had got married to late Sh. Satbir Singh on 20.06.1969 and was his legally wedded wife since the said date.
CS No. 177/13 26 / 3145. Even if the marriage certificate Ex.PW1/2 relied upon by the plaintiff is admitted in evidence, the same cannot prove that the plaintiff was the legally wedded second wife of late Sh. Satbir Singh and was thereby the sole beneficiary of his pension as the plaintiff has not produced either the death certificate of first wife of late Sh. Satbir Singh, namely, Smt. Chandrawati Devi, nor has the plaintiff proved on record the factum of divorce of Sh. Satbir Singh from Smt. Chandrawati Devi by placing on record any decree of divorce passed by any court of law to dissolve the marriage of Sh. Satbir Singh and Smt. Chandrawati Devi.
46. A similar situation had come up before Hon'ble High Court of Calcutta in the case of Union of India & Anr. Vs. Sipra Moitra & Anr. On 3 March, 1998 2 CALLT 125 HC wherein two ladies including plaintiff Sipra Moitra and one Gopa Moitra were claiming to be the legally wedded wives of deceased Biplab Kumar Moitra who had been employed as a wireman in the Planning Branch of Post and Telegraph Department under Calcutta Telephones at the time of his death. Plaintiff Sipra Moitra had filed a suit for claiming family pension of deceased Biplab Kumar Moitra on ground that she was the legally wedded wife of late. Biplab Kumar Moitra. Although one of the wives of late. Biplab Kumar Moitra, namely, Ms. Gopa Moitra had not contested the suit yet the Hon'ble High Court of Calcutta had dismissed the suit of plaintiff Sipra Moitra on ground that the other wife of deceased Biplab Kumar Moitra, namely, Ms. Gopa Moitra had supported her claim for family pension filed in the concerned office with a succession certificate issued in her favour to succeed to the estate of late Biplab Kumar Moitra along with the death certificate of late Biplab Kumar Moitra, an attested photograph of Ms. Gopa Moitra and Biplab Kumar Moitra, discharge slip and a photocopy of the power of attorney executed by Biplab's mother in her favour in support of her claim that she was the legally wedded wife of late Biplab Kumar Moitra CS No. 177/13 27 / 31 whereas plaintiff Sipra Moitra had failed to produce any legally admissible document in order to prove the factum of solemnisation of her marriage with late Biplab Moitra. The Hon'ble High Court of Calcutta had further observed that the case of plaintiff Sipra Moitra had become weaker on account of the fact that the mother of deceased Biplab Kumar Moitra had filed a sworn affidavit to the effect that there had been a legal marriage between Biplab Kumar Moitra and Ms.Gopa Moitra and in the absence of submission of any proof of solemnisation of marriage of plaintiff Sipra Moitra with the deceased employee of Post and Telegraph Department of Calcutta Telephones, namely, Biplab Kumar Moitra, the suit of the plaintiff was liable to be dismissed.
47. Observations made in paras 12, 14, 16 and 18 of the judgement passed in this case Union of India & Anr. Vs. Sipra Moitra & Anr. (Supra) are noteworthy in this context and are reproduced below:
12. It is true that Gopa Moltra did not contest the suit. It has also to be born in mind that Gopa Moltra claims to be a widow of a classIV servant who resides far away in Jaipur from the place of suelng. Mere not contesting the suit by Gopa Moitra without any legal proof will not render the marriage as valid between plaintiff and Biplab. Mr. Sanyal has placed reliance on the declaration purported to have been submitted by the deceased in his office. The trial court did not place any reliance on the said declaration allegedly given in the office as the signature appearing in the Declaration Form did not tally with the signature of Biplab Kumar Moftra in the Service Book. Normally, the court should not have taken burden of comparing signature in the disputed document with the admitted document. As a matter of prudence the court should not have played the role of a hand writing expert Itself and should have taken the assistance of an expert in arriving at its findings. The first appellate court presumably has committed serious mistake by taking the task upon Itself while discerning the signature appearing in the disputed document as well as in the Service Book. In the above background I am not in a position to place any reliance on the declaration form allegedly submitted by Biplab.
14. The appellate court was oblivious to the fact that Gopa Moltra filed the following documents before the appellant immediately after the death of Biplab Moitra. Those documents were, such as original death certificate, Gopa's signature, attested photograph of Gopa and Biplab. photo copy of the identity mark, discharge slip, photo copy of power of attorney executed by Biplab's mother, Photo copy of affidavit and photo copy of the birth of the child. It is significant to note that the appellate court has not considered about the merit of such documents. Had those document been CS No. 177/13 28 / 31 considered, the appellate court ought to have come to a different conclusion.
16. The learned first appellate court has unreasonably drawn an Inference that since Sipra was not made a party in succession case: the certificate granted by the court shall automatically loose its probative value. In the succession case general citation is usually made. The interested persons would normally, file their objection after having come to know about the case. Even after issue of such succession certificates it is open to a party to pray for cancellation of succession certificate. Till date no steps has been taken by the plaintiff for cancellation of the succession certificates. Therefore, presumptive value of such succession certificate shall not loose its importance, in the absence of such steps being taken by the plaintiff, rather, the mother of Biplab Moitra had affirmed an affidavit in favour of Gopa Moitra by stating that there was a legal marriage of her son and Gopa.
18. Once it was held that Gopa as the widow of Blplab Moltra and out of their lawful wedlock, a son was born. Then they shall represent not only the estate of the deceased but also all other service benefit accrued to him. Thus, findings of the first appellate court that in so far as the property of the deceased is concerned, it will devolve upon Gopa and her son but in respect of service benefit the plaintiff has acquired a right seems to be incongrueous and inharmonious. If Gopa is accepted as the widow to whom Blplab Moltra had married for the first time, all the service benefit would go to her. In this case, aparently, the motherinlaw of Gopa has affirmed an affidavit suggesting the marriage with Biplab on 9.3.1981. Thus, even assuming the plaintiff's marriage was held on 31st January, 1983, this marriage being for the second time held undoubtedly it is Invalid. Therefore, the plaintiff cannot claim any right muchless as regard service benefit through the deceased Biplab.
48. In the light of observations made by Hon'ble High Court of Calcutta in the decided case of Union of India & Anr. Vs Smt. Sipra Moitra & Anr. decided on 3 March, (1998) 2 CALLT 125 HC, it can be safely concluded that in order to substantiate her claim that plaintiff Damyanti Devi was the legally wedded wife of late Sh. Satbir Singh, the plaintiff was supposed to produce legally admissible evidence in support of her claim that first wife of late Sh. Satbir Singh, namely, Smt. Chandrawati Devi had expired. In the alternative, plaintiff could have placed on court record any decree of divorce passed by a court of law to dissolve the first marriage of late Sh. Satbir Singh with Smt. Chandrawati Devi. In the absence of documents to CS No. 177/13 29 / 31 prove either the factum of death of Smt. Chandrawati Devi or the factum of divorce of Sh. Satbir Singh from Smt. Chandrawati Devi, the plaintiff has failed to prove that she is the legally wedded wife of late Sh. Satbir Singh and is the sole beneficiary of his family pension. Hence, issue no. 4 is accordingly decided in favour of the defendant and against the plaintiff by arriving at a finding that plaintiff Damyanti Devi has neither managed to prove that she is the legally wedded second wife of late Sh. Satbir Singh nor established that she is the sole beneficiary of his pension and other benefits to be paid by the defendant office.
Issue No. 5 Relief.
49. In view of the findings of issues no. 2, 3 and 4 above, I am of the considered opinion that the plaintiff is not entitled to any relief from this court. As discussed in issue no. 2 above, the present suit is bad for non joinder of other legal heirs of deceased Ex.Sowar Satbir Singh including his legally wedded wife Smt. Chandrawati Devi because plaintiff has neither managed to prove that Smt. Chandrawati Devi has expired nor has the plaintiff managed to prove the factum of divorce of Smt. Chandrawati Devi from late Sh. Satbir Singh by placing on record any decree of divorce passed by any court of law to dissolve the marriage of Smt. Chandrawati Devi and late Sh. Satbir Singh.
50. Besides, as discussed in issue no. 3 above, the plaintiff has an equal and effacious remedy available to her in the form of suit for obtaining a succession certificate to succeed to the estate of late Sh. Satbir Singh then a suit for mandatory injunction for grant of the same relief of succeeding to the family pension and other superannuation benefits of late Sh. Satbir Singh cannot be granted as such a suit is barred under the provisions of section 41
(h) of the Specific Relief Act. Moreover as discussed in issue no. 4 above, plaintiff has failed to prove that she is the legally wedded wife of late Sh.
CS No. 177/13 30 / 31Satbir Singh and the sole beneficiary of his family pension and other benefits to be paid by the defendant office. In view of the findings of issues no. 2,3 and 4 enumerated above, plaintiff is not entitled to any relief of mandatory injunction in her favour and against the defendant directing the defendant to publish a DO Part II Order for the purpose of release family pension of late Ex. Sowar Sh. Satbir Singh in favour of the plaintiff. The suit of plaintiff is accordingly dismissed. However, there shall be no Order as to costs. Parties shall bear their own costs for the present proceedings.
51. File be consigned to record room after compliance of necessary formalities.
Announced in open Court (Jasjeet Kaur)
today on 31.01.2015 Civil Judge01/ Metropolitan Magistrate
New Delhi
CS No. 177/13 31 / 31