Madras High Court
Krishnammal vs Sarasam on 11 October, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 19.09.2018
PRONOUNCED ON : 11.10.2018
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
Second Appeal No.1048 of 2001
1.Krishnammal
2.Kayalvizhi
3.Thanumoorthy
4.Asha
5.Govindaraj ... Appellants
Vs
1.Sarasam
2.Rathish
3.Murugesh
4.The State of Tamil Nadu
represented by the District Collector,
Nagercoil, Kanyakumari District.
5.The District Educational Officer,
Nagercoil, Kanyakumari District.
6.The Headmaster,
Government Higher Secondary School,
Ramapuram, Thovalai Village & Taluk,
Kanyakuari District. ... Respondents
Prayer: The Second Appeal is filed under Section 100 of CPC,
against the judgment and decree of the Additional Subordinate
Judge, Nagercoil, in A.S.No.89 of 2000, dated 31.01.2001 in
reversing the judgment and decree of the Principal District
Munsif, Nagercoil, in O.S.No.93 of 1995, dated 21.07.2000.
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For Appellant :Mr.S.Ramesh
For R1 and R3 :Mr.A.Arumugam
for M/s.Ajmal Associates
For R4 to R6 :Mr.J.Gunaseelan Muthiah
Additional Government Pleader
R2 :No appearance
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JUDGMENT
The 1st to 5th defendants in O.S.No.93 of 1995 on the file of the Principal District Munsif Court, Nagercoil, are the appellants herein.
2.O.S.No.93 of 1995 had been filed by three plaintiffs, Sarasam and her two children, Rathish and Murugesh against, Krishnammal and her four children, Kayalvizhi, Thanumoorthy, Asha and Govindaraj and also against the State Government, represented by the District Collector, Kanyakumari District, the District Educational Officer, Nagercoil and the Headmaster, Government Higher Secondary School, Ramapuram, Thovalai Village, Kanyakumari District. The suit had been filed seeking permanent injunction restraining the 1st to 5th defendants from withdrawing the Retirement Pension, General Provident Fund and Family Pension, Special Pension and Insurance amount http://www.judis.nic.in 3 which had accrued to the account of Ganapathy, S/o. Dhanukonar and payable owing to his death and for a declaration that the plaintiffs are entitled for a declaration that the nominations made in this regard are not genuine and have been created fraudulently by collusion and for a mandatory injunction directing the 6th to 8th defendants to pay the amount of retirement benefits of family pension referred in the Will, dated 06.12.1993 to them.
3.In the plaint, it had been stated that the first plaintiff, Sarasm was the wife of Late Ganapathy and the 2nd and 3rd plaintiffs, Rathish and Murugesh are their sons. The first defendant, Krishnammal, was also described as a wife of late Ganapathy. The 2nd to 5th defendants were also described as the children of Ganapathy. It had been stated that the first plaintiff was the legally wedded second wife of deceased Ganapathy. The said Ganapathy was working as Teacher in the Government Higher Secondary School, Ramapuram, Thovalai Village, Kanyakumari District at the time of death. http://www.judis.nic.in 4
4.It was stated that Ganapathy had executed a Will on 06.12.1993. The immovable properties were allotted to the 1st to 5th defendants. The plaintiffs were declared entitled for his retirement and other benefits. It had been stated that the first plaintiff was however shown as nominee in the Service Register of Ganapathy. It is under these circumstances, the suit had been filed.
5.The 1st, 2nd, 4th and 5th defendants filed their written statement. In the written statement, they stated that the 1st plaintiff was not the wife of Ganapathy. They also stated that the 2nd and 3rd plaintiffs were not born out of wedlock between Ganapathy and the 1st plaintiff. The defendants denied all the allegations made in the plaint. They stated that the plaintiffs have no cause of action. They stated that the suit has to be dismissed.
6.The 3rd defendant filed a memo adopting the said written statement.
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7.The 1st defendant filed an additional written statement. In the additional written statement, it had been stated that the Will not executed voluntarily by Ganapathy. It had been reiterated that the suit should be dismissed.
8.The 8th defendant filed written statement. In the written statement, it had been stated that Ganapathy died before retirement, and was entitled to family pension. It had been stated that the nomination for Employee Special Fund / Gratuity was made in favour of Kayalvizhi, Thanumoorthy, Asha, Govindaraj and Rathish. The nomination for both the Employee Retirement and Gratuity Fund were made in favour of Kayalvizhi, Thanumoorthy, Asha and Govindaraj. The nomination for Family Pension was made in favour of Kayalvizhi, Thanumoorthy, Asha, Govindaraj. The nomination of Tamil Nadu Family Pension was made in favour of Krishnammal. It was stated that the amounts due on the death of Ganapathy have to be disbursed in accordance with the nominations made.
9.This suit came for consideration before the learned Principal District Munsif on 13.02.1998. It was partly decreed. A http://www.judis.nic.in 6 first appeal was filed and the judgment was set aside by the appellate Court and the matter was remanded back to the Munsif Court. The suit was then dismissed by the learned Principal District Munsif, by judgment and decree dated 21.07.2000. Challenging that judgment, the plaintiffs filed A.S.No.55 of 2000 before the District Court, Nagercoil. This appeal was then transferred to the Additional Subordinate Court, Nagercoil and renumbered as A.S.No.89 of 2000. This appeal was allowed by the learned Subordinate Judge, leading to filing of the present second appeal by the 1st to 5th defendants.
10.This second appeal had been admitted on the following substantial questions of law:
“a)Whether the lower appellate Court is right in recognizing PW-1 as the wife of Ganapathy, when the marriage between them has not been established?
b)Whether the lower appellate Court is right in drawing presumption as regards marriage, when PW-1 admits that she is aware of the prior marriage between first defendant and Ganapathy?
c)Whether the lower appellate Court is right in decreeing the suit for injunction at the instance of the nominee and against the beneficiary?
d)Whether the nominees are entitled to exclude the legal heirs of the deceased Ganapathy, in the matter of receiving the service benefits?” http://www.judis.nic.in 7
11.Heard arguments advanced by Mr.S.Ramesh, learned Counsel for the appellants, Mr.A.Arumugam, for M/s.Ajmal Associates, learned Counsel for 1st and 3rd respondents and Mr.J.Gunaseelan Muthiah, learned Additional Government Pleader for the 4th to 6th respondents.
12.For the sake of convenience, the parties shall be referred as plaintiffs and defendants.
13.The entire issue surrounds the life of late Ganapathy, who died a Teacher in Government Higher Secondary School, Ramapuram, Thovalai Village, Kanyakumari District. The 1st defendant, Krishanammal, is his first wife. He had four children through her, Kayalvizhi, Thanumoorthy, Asha and Govindaraj. They were the 2nd to 5th defendants in the suit. The Headmaster of the School, where he worked, was the 8th defendant. The 6th and 7th defendants were the District Collector and District Educational Officer, Nagercoil. The suit in O.S.No.93 of 1997 had been filed by Sarasam, Rathish and Murugesh. They claimed that the 1st plaintiff was the second wife of Ganapathy and Rathish and Murugesh were her children born through http://www.judis.nic.in 8 cohabitation with Ganapathy.
14.The suit had been filed on the strength of a Will, which was produced as Ex-A1, dated 06.12.1983, in which permission were given relating to the retirement benefits and family pension, which had accrued owing to the death of Ganapathy. The trial Court dismissed the suit. The first appellate Court reversed the judgment of the trial Court. 1st to 5th defendants have, therefore, filed the present second appeal.
16.The first substantial question of law, which had been framed was whether the second wife can be recognised as a legally wedded wife, when her marriage had not been established. The answer is obviously no. She cannot be recognised as a wife, when the first wife is alive and her marriage is subsisting.
17.The second substantial question of law, which had been framed was whether the lower appellate Court was right in drawing a presumption regarding marriage. Again, it is held that this presumption cannot be drawn, particularly, when PW-1 had http://www.judis.nic.in 9 admitted that she knew about the subsisting marriage of the first defendant with Ganapathy.
18.The third substantial question of law, which was formulated was whether the lower appellate Court was right in decreeing the suit at the instance of the nominee as against the beneficiary. In this regard, reference with much advantage can be drawn to the unreported judgment in W.A.No.977 of 2017 by the Division Bench of this Court, which delivered on 05.06.2018. The Division Bench of this Court had to consider several conflicting judgments of learned Single Judges of this Court, wherein, contrary views taken with respect to the status of the second wife, viz-a-viz, family pension rights, particularly, when a Government servant died. After analysing all the conflicting judgments, the Division bench finally held as follows:
“43. We are, therefore, constrained to conclude that the judgments which conclude that a second wife would be entitled to family pension, irrespective of her marriage being void, under the provisions of their relevant Personal Law#s applicable to the parties do not reflect the correct position of law and therefore will stand overruled. The applicability of Sub Rule 7(a)(i) is confined only to cases where the second marriage is valid under the Personal Law applicable to the parties, only in such cases, widows of such marriages would be entitled to family pension.” http://www.judis.nic.in 10
19.The dictum laid down by the Division Bench is directly applicable to the facts of this case. The first plaintiff, who termed herself as a second wife, is not entitled to any benefits payable by the 8th defendant owning to the death of Ganapathy. The family pension, which had accrued and the monthly family pension have to be paid only to the first defendant, Krishnammal. The other benefits have to be divided among the legal heirs. 2nd and 3rd plaintiffs, though illegitimate children, are also entitled an equal share in the other benefits.
20.Mr.S.Ramesh, learned Counsel for the appellants called upon the Court to express an opinion regarding the conduct of a Government Servant, Ganapathy, who died leaving behind a wife and also another lady, who also claimed the status of wife and children born through both of them. This Court would be prudent and it would only be advisable that, atleast in this case, findings are rendered based on the pleadings and evidence. The third substantial question of law is answered that irrespective of the nomination, both legitimate and illegitimate children are entitled to an equal share along with the first defendant in all the retirement and death benefits under whatever nomenclature http://www.judis.nic.in 11 they may be of Ganapathy. The monthly family pension and the accrued pension can be paid only to the first defendant, Krishnammal.
21.In view of the reasons stated above, the judgment and decree of the Additional Subordinate Judge, Nagercoil, in A.S.No.89 of 2000, dated 31.01.2001 is set aside and the judgment and decree of the Principal District Munsif, Nagercoil, in O.S.No.93 of 1995, dated 21.07.2000 is modified under Order 41 Rule 33 of CPC and it is held that the plaintiff, Sarasam is not entitled to either family pension or to any other benefits due on the death of Ganapathy. The first defendant, Krishnammal, is entitled to the monthly family pension and the accrued Family Pension amount. The 2nd to 5th defendants, namely, Kayalvizhi, Thanumoorthy, Asha and Govindaraj and also 2nd and 3rd plaintiffs, namely, Rathish and Murugesh are all entitled to an equal share along with the first defendant, Krishnammal in all other benefits, which are payable owing to the death of Ganapathy.
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22.The second appeal is allowed with the above observation without costs. The 4th and 5th respondents are directed to disburse the family pension and other benefits in the above manner within a period of four weeks from the date of this judgment.
Index :Yes/No 11.10.2018
Internet :Yes/No
cmr
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To
1.The Additional Subordinate Judge, Nagercoil.
2.The Principal District Munsif, Nagercoil.
3.The District Collector, Nagercoil, Kanyakumari District.
4.The District Educational Officer, Nagercoil, Kanyakumari District.
5.The Headmaster, Government Higher Secondary School, Ramapuram, Thovalai Village & Taluk, Kanyakuari District.
6.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 14 C.V.KARTHIKEYAN,J., cmr Pre-Delivery Judgment made in Second Appeal No.1048 of 2001 11.10.2018 http://www.judis.nic.in