Delhi District Court
Smt. Rita vs Cgo (Admn.) on 31 January, 2020
In the Court of Sh. Sumit Dass: Additional District Judge
(South District) Saket Court Complex, New Delhi.
RCA No. : 56/2018
1. Smt. Rita
W/o Late Sh. Jairajan
R/o RZ442, CII, Street no. 23
Sadh Nagar, Palam Colony
New Delhi110045
2. Ms. Prerna
D/o Late Sh. Jairajan
R/o RZ442, CII, Street no. 23
Sadh Nagar, Palam Colony
New Delhi110045
3. Master Hardek,
S/o Late Sh. Jairajan
R/o RZ442, CII, Street no. 23
Sadh Nagar, Palam Colony
New Delhi110045 ......Appellants
VERSUS
1. CGO (Admn.)
Air Force Station, Palam 3 Wing
Delhi Cantt, South West
Delhi 110010
2. A.O.C.
Air Force Station, Palam 3 Wing
Delhi Cantt, South West
Delhi 110010
3. Union of India
Through Secretary
Ministry of Defence
South Block
Central Secretariat
New Delhi - 110011
RCA no. 56/2018 Page no. 1 of 12
Rita & ors vs. CGO (Admn) & ors
4. Smt. Anita
D/o Sh. Ram Charan Dhiman
R/o CII/253, Madangir
New Delhi110062 .......Respondents
Appeal filed on : 05.07.2018
Arguments concluded on : 29.01.2020
Judgment pronounced on : 31.01.2020
JUDGMENT
1. The appellants are aggrieved of the judgment and decree dated 21.11.2017 passed by Sh. Prashant Sharma, Ld. SCJCumRC (Central), Tis Hazari Court, in suit bearing no. 97770/16/06 whereby the Ld. Trial Court was pleased to dismiss the suit titled as "Smt. Rita & ors vs. CGO (Admn.) & ors".
2. I am summarizing the factual matrix to make the position clear rather than delving into the individual case as narrated by the plaintiffs, department as well as by defendant no. 4 - primarily contesting party. Same would keep the discussion in proper perspective and would also take into account developments which took place till final disposal of the case as parties were litigating in another Court as wll.
2.1. Admittedly, Late Jairajan Panikar also named frequently as Rajan Panikar was married to defendant no. 4 Anita. Viz a viz them a matrimonial litigation ensued whereafter a petition under Section 13 (1)
(a) of Hindu Marriage Act, 1955 filed by the said Jairajan Panikar @ Rajan Panikar against his wife Anita Panikar was dismissed by Sh. M.C. Garg, Ld. ADJ (As his Lordships was then). Against the said order, the RCA no. 56/2018 Page no. 2 of 12 Rita & ors vs. CGO (Admn) & ors husband Jairajan Panikar had preferred an appeal which was listed before Hon'ble High Court, however before the same could be disposed off as Jairajan Panikar expired in the year 2006.
2.2. In this regard the order passed by the Hon'ble High Court is important for the present discussion in as much as till the said date i.e. 31.08.2006, Anita Panicker @ Anita Dhiman, the respondent no. 4 continued to be his legally wedded wife.
2.3. Since both of them were embroiled in a matrimonial litigation, moreso when the said Jairajan @ Rajan had also levelled allegations of adultery, the question of parties putting up together or living under one roof does not arise.
2.4. Be that as it may be, now the plaintiff came into picture, she claimed that she is the legally wedded wife and plaintiff no. 2 and 3 are offsprings from her marriage with Jairajan Panikar @ Rajan Panikar which was solemnized in the year 1990.
2.5. Since Jairajan Panikar @ Rajan Panikar died while he was in service, the question of his retirement benefits came up to the fore or this issue opened up which gave rise to multiple litigations, one of which I am disposing off by the present order.
Plaintiffs were arrayed on one side and on the other side, the wife viz a viz whom the proceedings were terminated on account of the death of Rajan Panikar was pitted both had don the litigating gloves. Their bout is going on since the last more than 13 years. Needless to state, before that Rajan Panikar was in litigation against his wife since the RCA no. 56/2018 Page no. 3 of 12 Rita & ors vs. CGO (Admn) & ors year 1990 as evident from the number of the HMA petition which was dismissed by the Ld. ADJ. Thus, virtually a major/ productive part of the life of all parties has been engulfed or marred / tarred in litigation.
3. As mentioned at the very outset, I am not going into the details of the case and confining myself to the question involved in the appeal.
3.1. Qua the service benefits of Late Jairajan Panikar @ Rajan Panikar, the matter was also heard and disposed off by Sh. Sandeep Garg, Ld. Administrative Civil JudgeCumAdditional Rent Controller (Central), Delhi in Succession Petition no. 302/2008 titled as "Rita & ors vs. Union of India & ors" on 09.10.2014. The same was a contested petition after leading of evidence. Ld. ACJCumARC has disposed off the petition observing as hereunder:
"18.The version of the petitioner is that the deceased was a divrocee at the time of his marriage with her. In the nomination form dated 27.02.1987 Ex. PW3/R5, filled by the deceased in his own handwriting, name of objector Smt. Anita has been mentioned as his wife. No evidence has been adduced by the petitioner to establish that deceased was a divorcee. On the contrary, it has been established that the divorce petition was dismissed and during pendency of appeal, Jain Rajan Panicker died. Therefore, the marriage with respondent no. 5 Anita never got dissolved. The marriage of petitioner with the deceased is illegal, null and void. However, from Ex. PW3/R5 it is evident that petitioners no. 2 and 3 namely Baby Prerna and Master Hardik are the children of deceased Rajan Paniker. Therefore, the court holds that petitioner no. 1 is not entitled to any share in the debts and securities of the deceased. However, it is prima facie established that the objector Anita continued to be the legally wedded wife of the deceased. As per Section 16 of Hindu Marriage Act, 1955, children been out of null and void marriage are also entitled to share in the property of their parents.
19. There is no impediment for the grant of Succession Certificate RCA no. 56/2018 Page no. 4 of 12 Rita & ors vs. CGO (Admn) & ors in favour of respondent no. 5 Anita and petitioners no. 2 and 3 viz. Baby Prerna and Master Hardik qua the debts and securities of deceased namely Jai Rajan to the extent of 1/3rd share each qua the service dues i.e. Death and Retirement Gratuity, Insurance + CGEGIS Subscription, Leave Encashment, GPF, DLI and family pension, as per which the outstanding dues of the deceased with its employer was Rs.6,50,455/. Succession Certificate be drawn on deposit of court fee of Rs.16,261/ and on furnishing of Indemnity Bond with one surety within 15 days.
As per record petitioner no. 3 Master Hardik is still minor, therefore, his respective 1/3rd share be kept in term deposit with any nationalized bank/ Post office till he attains the age of majority."
3.2. A revocation petition under Section 383 of the Indian Succession Act was filed by Smt. Anita against the said order. The said petition has been dismissed by Sh. Gajender Singh Nagar, Ld. ACJCumARC vide his order dated 02.03.2019. The same has been also filed on record by the appellants.
4. I may also add that the said Succession petition was filed after the filing of the instant suit which was filed prior in time in the year 2006. The present suit was for the relief of mandatory injunction, I am quoting the relief paras also which are important:
"a) issue direction to the respondent no. 1 to 3, for making the payment of the aforesaid service benefits of Late Sh. Jairajan to the plaintiff no. 1 to 3 in equal shares;
b) issue directions to the respondents no. 1 to 3 that the respondent no. 4 should not be paid any amount out of the service benefits of Late Shri Jairajan;
c) pass any other order, which this Hon'ble Court deems fit and proper in the facts and circumstances of the case, may also be passed in favour of the plaintiffs."
4.1. Paragraph no. 1 of the plaint delineates the relation of the parties / plaintiff with deceased Jairajan. She had stated that her marriage with Jairajan, who was a divorcee was solemnized according to RCA no. 56/2018 Page no. 5 of 12 Rita & ors vs. CGO (Admn) & ors Hindu rites and ceremonies on 02.01.1990 at Delhi. The children namely Baby Prerna i.e. Plaintiff no. 2 and Master Hardek, plaintiff no. 3 were born on 17.10.1990 and 16.06.1999 at Delhi. It is further stated that the documents viz a viz their rights were filed alongwith the plaint, some of which were during the lifetime of Jairajan and also given by him to his Department mentioning the relation which he had with the plaintiffs.
4.2. Necessarily, the stand of the contesting defendant no. 4 was based on the documents that she continued to be the legally wedded wife and therefore the question of the plaintiff no. 1 being wife of Late Jairajan Panikar does not arise.
4.3. The role of department in which Sh. Jairajan Panikar was employed i.e. Civilian MTD in Indian Air Force is not much in the given facts and circumstances of the case, but I may just note herein that the manner in which the documents have been kept, particularly the service record reveals that either there was negligence or there was some connivance between the lower staff of the Department as the first nomination was in the name of Anita whereafter the CGHS card was made in the name of Rita and later on the name of plaintiff no. 2 and 3 were inserted as daughter and son respectively. The department should have been circumspect and should have either asked the plaintiff no. 1 or its employee Jairajan Paniker as to how the name Anita, his wife was changed to Rita or whether he had obtained any annulment decree of marriage from said Anita before addition of name of Rita as spouse in the medical card. This litigation has travelled for more than 13 years primarily for the said reason. To my mind if the record was correctly maintained, this litigation could have been avoided altogether or atleast RCA no. 56/2018 Page no. 6 of 12 Rita & ors vs. CGO (Admn) & ors the parties would have realized the fact that they are contending contrary to the record. Unnecessarily their lives have been sucked in this vortex and they have lived the life under the shadow of litigation. This is the reason I wish to dispose off this matter so as to lend finality and the parties should be left to pursue their own career graphs.
5. Having given the broad outline, let me deal with the judgment under challenge. Issues which were settled by the Ld. Trial Court, same are as under:
"1. Whether the plaintiffs are entitled to the service benefits of Late Sh. Jairajan? OPP
2. Whether the defendant no. 4 has right also to the service benefits of Late Sh. Jairajan? OPD4
3. Whether the suit is not maintainable? OPD
4. Relief."
5.1. On behalf of the plaintiffs, Smt. Rita was examined as PW1 and thereafter PE was closed. None of the defendants lead any evidence in their defence.
5.2. Ld. Trial Court after hearing either side had dismissed the suit.
6. Heard all concerned parties on the appeal.
6.1. Persistently Ld. Counsel for the appellants contended that infact what transpired was that Anita had left Delhi and was not heard for more than 7 years and as such the deceased was left with no option but had married the plaintiff no. 1. Infact Anita is embroiled in number of cases and he has also placed on record one chargesheet showing her involvement so much so she was declared as proclaimed offender. As RCA no. 56/2018 Page no. 7 of 12 Rita & ors vs. CGO (Admn) & ors such that since Anita was not heard for 7 years, the deceased could have contracted the marriage with Rita, the plaintiff no.1.
6.2. Now, qua the aforesaid question I just intend to quote Section 5 of the Hindu Marriage Act, 1955:
"5. Conditions for a Hindu marriage: A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled namely:
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder or such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity.
(iii) the bridegroom has completed the age of twentyone years and the bride, the age of eighteen years at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two."
The spouse of the deceased namely Anita was living at the time of marriage. It is not that she had died or otherwise the deceased Jairajan had obtained any declaration as to the fact that she was not heard for the last more than 7 years. Infact, as per the plaint, deceased had married with plaintiff no. 1 in the year 1990 i.e. the year when the deceased had filed the divorce petition. In other words, the deceased had simultaneously of the filing of the divorce petition started living with plaintiff no. 1.
RCA no. 56/2018 Page no. 8 of 12 Rita & ors vs. CGO (Admn) & ors
6.3. In the teeth of the documentary evidence that the marriage was still subsisting at the date of the death of Jairajan Panikar in as much as the petition under the Hindu Marriage Act, 1955 filed by Jairajan Panikar was dismissed and qua which appeal was pending the question of validity of marriage of Jairajan Panikar with plaintiff no. 1 does not arise. The conditions for a valid Hindu marriage did not exist.
6.4. Dehors the aforesaid there is not a bare whisper in the pleading as when the marriage ceremony between deceased and plaintiff no. 1 was solemnized. So much so the date of marriage i.e. 02 January before 1990 has been inserted/ interpolated by a pen. The place of marriage and all other details are conspicuously absent.
6.5. Elaborating further, there is no iota of evidence led by the plaintiff to underscore the aspect as to when, how and where her marriage was solemnized with Jairajan. Infact in the evidence of affidavit of PW1 this aspect is again conspicuously silent. I fail to understand that on what basis the plaintiff no. 1 contents that she was the legally wedded wife of Late Jairajan Panikar.
6.6. The fact that the documents were prepared at the instance/ information of Late Jairajan and given to the department per se have no sanctity in the light of the fact that the marriage between Jairajan and Anita continued to subsist till the death of Jairajan. Infact the petition before the Hon'ble High Court was withdrawn subsequently. Thus, there cannot be any marriage between deceased Jairajan and plaintiff no. 1.
RCA no. 56/2018 Page no. 9 of 12 Rita & ors vs. CGO (Admn) & ors
6.7. That being the position, in my opinion, the findings of the Ld. Trial Court on issue no 1, particularly the validity of the marriage of plaintiff no. 1 does not call for any interference. At the same time viz a viz plaintiff no. 2 and 3 Succession petition has been allowed and infact the revocation petition has also been dismissed, thus, there is no need to delve again on this issue as to their entitlement. At the cost of repetition, I may note that the information furnished by Jairajan Panikar viz a viz the status of plaintiff no. 1 cannot be looked into or given effect to in the light of the statutory prohibition as contained in Section 5 of the Hindu Marriage Act, 1955, however, the information furnished by the deceased qua plaintiff no. 2 and 3 during his lifetime to his employer has evidentiary value qua the status of the plaintiff no. 2 and 3. Their rights are protected by Section 16 of the Hindu Marriage Act, 1955.
6.8. Ld. Counsel for the appellants had contended that there had been a partial adjudication as only the rights viz a viz the plaintiff were adjudicated by the Ld. Trial Court at the time of returning findings on issue no. 1 the right/interest of plaintiff no. 2 and 3 was not dealt with. I disagree on this aspect. The findings of issue no. 3 to a very large extent takes within its hue the final judgment delivered by the Ld. ACJCum ARC on the Succession Petition. Though I do not fully agree with the findings qua issue no. 3 but as mentioned above, the judgment rendered by the Ld. ACJCumARC coupled with the subsequent dismissal of the Revocation Petition the said judicial adjudications can be suitably taken into account moreso when there has been evidence led by either side and the present suit being only a suit for mandatory injunction without there being any declaratory relief sought.
RCA no. 56/2018 Page no. 10 of 12 Rita & ors vs. CGO (Admn) & ors
7. Coming to the findings qua issue no. 3: the Ld. Trial court had observed that the findings of the Ld. ACJ in a manner operates as res judicata. This to my mind is erroneous in as much as ambit of an application/ Succession Petition is constricted being a summary provision. Reference can be made to "Smt Savitri Devi vs. Smt. Manorama Bai & ors" M.A. No. 685/96 decided on 28.04.1997, wherein the following observations were made:
"It was contended on behalf of the respondent no. 1 that the finding recorded in a summary proceeding cannot be set aside in appeal. Section 384 of the Indian Succession Act provides that the order of the Succession Court granting or refusing certificate is expellable. The High Curt may by its order declare the person to whom the certificate should be granted. Therefore, the finding can be reviewed in appeal. In this case it has been found that the finding regarding the divorce of the first wife is perverse and therefore, it is liable to be corrected in appeal. It is further argued on behalf of the respondent no. 1 that the finding of the Succession Curt would not operate as res judicata in any other proceeding and therefore, the appellant instead of filing this appeal should have challenged this issue in a separate suit. It is true that a separate suit is maintainable for challenging the succession certificate. Section 387 of the unsuccessful party to file such a silk. But the choice is with the party. He may elect to challenge it in appeal or in a separate suit."
7.1. As informed by either side an appeal is pending against the said adjudication by the Ld. ACJ. The option to challenge the same in suit or to file an appeal is of the aggrieved party. Thus, to contend that the findings of the Ld. ACJ operates as res judicata is not correct moreso when the same were under challenge.
7.2. Apart thereof, I may note herein that issue no. 2 as framed by the Ld. Trial Court is also an otiose issue or an uncalled for an issue. The defendant Anita had not filed any counterclaim and neither her RCA no. 56/2018 Page no. 11 of 12 Rita & ors vs. CGO (Admn) & ors entitlement could have been adjudicated in the present suit. The suit of the plaintiff could have been decreed or dismissed but the entitlement of Anita could not have been the subject matter of a distinct issue. Nonetheless, since the said aspect has also been considered in the Succession Petition, I am not observing anything else on the said aspect.
7.3. The appeal therefore is without any merit. The same is dismissed. No order as to cost.
Appeal file be consigned to record room. Copy of the order be sent to the Ld. Trial Court for information and intimation.
Pronounced in open Court
on 31.01.2020 (Sumit Dass)
Additional District Judge03,
South/Saket/New Delhi
RCA no. 56/2018 Page no. 12 of 12
Rita & ors vs. CGO (Admn) & ors