Kerala High Court
P.Vasantha vs Southern Raiwlay on 25 May, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 25TH DAY OF MAY 2021 / 4TH JYAISHTA, 1943
OP (CAT) NO. 210 OF 2017
AGAINST THE ORDER/JUDGMENT IN OA 958/2015 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH, ERNAKULAM
PETITIONERS/PETITIONERS:
1 P.VASANTHA
AGED 48 YEARS
MANIKANTA MANDIRAM, VILAVOORKAL, MALAYANKIL P.O,
2 MANIKANTAN
MANIKANTA MANDIRAM, VILAVOORKAL, MALAYANKIL PO.
3 JAYALEKSHMI
MANIKANTA MANDIRAM, VILAVOORKAL, MALAYANKIL PO.
BY ADVS.
SMT.K.P.SANTHI
SRI.RILGIN V.GEORGE
RESPONDENTS/RESPONDENTS:
1 SOUTHERN RAILWAY
REPRESENTED BY ITS GENERAL MANAGER,
SOUTHERN RAILWAY , CHENNAI.
2 THE CHIEF ACCOUNTS OFFICER
OFFICE OF THE FINANCIAL ADVISOR & CHIEF ACCOUNTS
OFFICER,
CHENNAI-3.
BY ADVS.
SC, RAILWAYS
SRI.S.RADHAKRISHNAN,SENIOR PANEL,RAILWAYS
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 10-03-2021, THE COURT
ON 25-05-2021 DELIVERED THE FOLLOWING:
O.P (CAT) No.210 of 2017
2
(C.R)
ALEXANDER THOMAS & K.BABU, JJ.
-----------------------------------------------
O.P(CAT) No.210 of 2017
[Arising out of order dated 22-06-2017
in O.A No.958 of 2015 of CAT, Ekm Bench]
-----------------------------------------------
Dated this the 25th day of May, 2021
JUDGMENT
K.BABU, J.
The challenge in this Original Petition, filed under Articles 226
& 227 of the Constitution of India, is against Ext.P4 order dated
22-06-2017 in O.A No.958/2015 of the Central Administrative
Tribunal, Ernakulam Bench.
2. The prayers in the original petition are as follows:
(I) Set aside Ext.P4 order as illegal, unjust and unreasonable.
(ii) Direct respondents to disburse the benefits due to the
petitioners, being the legal heirs of a deceased Sreedharan,
within a time frame to be fixed by this Honourable Court.
(iii) Issue such other writ, direction or order as is deemed just
and necessary in the facts and circumstances of the case.
3. Heard Smt.K.P.Santhi, learned counsel appearing for the
petitioners and Sri.S.Radhakrishnan, learned counsel appearing for
the respondents.
4. The petitioners had filed O.A No.958/2015 with the
following prayers:
O.P (CAT) No.210 of 2017
(i) Direct respondents to disburse the benefits due to the
applicants, being the legal heirs of a deceased
Sreedharan, within a time frame to be fixed by this
Honourable Court.
(ii) Issue such other writ, direction or order as is deemed just
and necessary in the facts and circumstances of the case.
5. By order dated 22-06-2017 the Tribunal dismissed the
Original Application granting liberty to the petitioners to approach
the Civil Court for appropriate declaration, if so advised.
6. The petitioners pleaded the following:- The petitioner No.1
is the legally wedded wife of Sreedharan, who was employed in the
Indian Railways. Petitioners 2 & 3 are the issues born to petitioner
No.1 in her wedlock with Sreedharan. Sreedharan obtained
voluntary retirement from the Railways on 17-12-1987. He has been
missing since 12-03-1998. A complaint under the caption "man
missing" was lodged at the Malayinkeezhu Police Station on the
basis of which FIR No.194/98 was registered. The petitioners are
the legal heirs and successors of Sreedharan. The petitioner No.1
filed O.P No.246/2003 before the Family Court,
Thiruvananthapuram impleading Sreedharan as the sole respondent
and obtained a declaration, that she is his legally wedded wife, by
way of Anx.A3 judgment. Sreedharan had married one Kamalamma
on 06-09-1962 and two children were born in that wedlock. The
O.P (CAT) No.210 of 2017
marriage between Kamalamma and Sreedharan was dissolved by
way of a decree of divorce passed by the Family Court,
Thiruvananthapuram on 23-12-1992 in O.P No.512/92. The
petitioners filed O.P No.681/2004, impleading Southern Railway
and its Chief Accounts Officer as respondents, and prayed for
releasing the retirement benefits of Sreedharan to them in the
capacity as his legal heirs. By way of judgment dated 11-04-2007, the
Family Court declined the reliefs prayed for by the petitioners
holding that there was no valid marriage between petitioner No.1
and Sreedharan. The petitioners filed Mat.Appeal No.455/2007
before this Court. As per Anx.R2 judgment dated 02-07-2008 this
Court granted liberty to the petitioners to approach the Civil Court
for seeking necessary declarations. The judgment dated 02-07-2008
in Mat.Appeal No.455/2007 was reviewed in R.P No.313/2010 and
this Court permitted the petitioners to approach Family Court
instead of Civil Court. The petitioner No.1 had filed O.A
No.400/2009 before the Tribunal and the same was closed on
18-02-2010 permitting her to approach the Tribunal afresh. The
petitioner No.1 filed O.A No.829/201o, in which the Tribunal
directed the petitioners to approach the Civil Court. The petitioners
O.P (CAT) No.210 of 2017
then filed O.P (Suc) No.7/2012 before the Sub Court, Trivandrum,
which was disposed of by way of Anx.A6 judgment dated
20-08-2014, holding that the O.P was not maintainable in view of
the pleadings of the petitioners that they were claiming benefits by
way of testamentary succession. The petitioners again approached
the Tribunal and prayed for disbursing the retirement benefits of
Sreedharan to them.
7. The respondents set up the following pleadings:- The
petitioner No.1 cannot claim the status of a legally wedded wife,
since on 17-03-1984, the date on which Sreedharan is said to have
married her, he had a wife living. That marriage was dissolved only
in the year 1992. Annexure A2 Legal Heirship certificate and Anx.A3
judgment in O.P No.246/2003 were obtained by the petitioners
without impleading Kamalamma, who is the legally wedded wife of
Sreedharan. As per Anx.R2 judgment, in Mat.Appeal No.455/2007,
the petitioners were directed to approach the Family Court after
impleading Kamalamma for seeking necessary reliefs. Instead, the
petitioners approached the Tribunal again by filing O.A
No.400/2009 and thereafter again preferred O.A No.829/2010
wherein also the reliefs prayed for was to disburse the retiral
O.P (CAT) No.210 of 2017
benefits of Sreedharan to them. Original Application No.829/2010
was dismissed as per Anx.R4 order dated 30-01-2012 after a detailed
consideration, directing the petitioners to approach the competent
forum. The present O.A has been filed seeking the same reliefs, that
too, without impleading Kamalamma and her children.
8. Sreedharan was serving as additional Divisional Accounts
Officer in the Southern Railway at the time when he obtained
voluntary retirement on 17-12-1987. It is pleaded that Sreedharan
has been missing since 12-03-1998 and a man missing case has been
registered in Malayinkeezhu Police Station as FIR No.194/98.
9. The petitioner No.1 claims that she is the legally wedded
wife of Sreedharan and that the other petitioners are her issues in
the wedlock with Sreedharan.
10. Based on the pleadings that Sreedharan is absent from his
last and usual place of residence without having been heard from
for a period of 7 years, the petitioners, invoking the rule of
"presumption of death", approached the Railways seeking the
benefits due to them claiming that they are the legal heirs and
successors of Sreedharan. The Railways insisted for a declaration by
a competent court regarding the heirship of petitioners.
O.P (CAT) No.210 of 2017
11. Then, the petitioner No.1 approached the Family Court,
Thiruvananthapuram and sought for a declaration that she is the
legally wedded wife of Sreedharan, by filing O.P No.246/2003,
impleading Sreedharan as the sole respondent. As per Anx.A3
judgment dated 20-01-2004 the Family Court declared that
petitioner No.1 is the legally wedded wife of Sreedharan.
12. It is not in dispute that Sreedharan had married
Kamalamma on 06-09-1962 and that two children were born in that
wedlock. It is also not in dispute that the marriage between
Kamalamma and Sreedharan was dissolved only on 23-12-1992 as
per Anx.A4 judgment dated 23-12-1992 in O.P No.512/1992 of the
Family Court, Thiruvananthapuram.
13. The petitioners filed O.P No.881/2004 impleading
Southern Railway and its Chief Accounts Officers (respondents
herein) as respondents before the Family Court,
Thiruvananthapuram and prayed for directing them to disburse the
family pension and other retiral benefits of Sreedharan. As per
Anx.R1 judgment dated 11-04-2007 the Family Court dismissed O.P
No.881/2004 holding that there could not be a valid marriage
between Sreedharan and petitioner No.1 and hence they are not
O.P (CAT) No.210 of 2017
entitled to the reliefs prayed in the petition.
14. The petitioners brought the matter before this Court in
Mat.Appeal No.455/2007. As per Anx.R2 judgment dated
02-07-2008 this Court dismissed the appeal, but granted liberty to
the petitioners to approach the Civil Court.
15. The petitioners thereafter approached the Tribunal by
filing O.A No.400/2009, seeking disbursal of retiral benefits, which
was allowed to be withdrawn, and thereafter, they filed O.A
No.829/2010 impleading the respondents herein and Kamalamma
and her children. The Tribunal as per Anx.R4 judgment dismissed
O.A No.829/2010 with the observation that the issues under
consideration are matters purely of a civil nature and the remedy
available to the petitioners is to approach Civil Court or Family
Court seeking necessary reliefs after impleading Kamalamma and
her two children. Subsequently, the petitioners filed O.P (Suc)
No.7/2012 before the Sub Court, Thiruvananthapuram which
dismissed the petition on the ground that the petition is not
maintainable in view of the plea of testamentary succession.
16. The learned counsel for the petitioners submitted that as
per Anx.A3 judgment in O.P No.246/2003, the Family Court has
O.P (CAT) No.210 of 2017
declared that the petitioner No.1 is the legally wedded wife of
Sreedharan and hence no more declaration is required for seeking
the reliefs prayed for in the O.A.
17. The learned counsel for the respondents, per contra,
submitted that, Anx.A3 judgment in O.P No.246/2003 is not
binding on Kamalamma who is the legally wedded wife of
Sreedharan or the respondents. The learned counsel further
submitted that as per Anx.R1 judgment in O.P No.881/2004 the
Family Court, Thiruvananthapuram held that the petitioner No.1
cannot claim as the legally wedded wife of Sreedharan as, on the
date on which her marriage was said to have taken place, Sreedharan
had Kamalamma as his wife and that when the matter came up in
Appeal before this Court in Mat. Appeal No.455/2007, the
petitioners were given the liberty to approach the Family Court
concerned for seeking necessary reliefs.
18. In the original petition No.246/2003 before the Family
Court, Thiruvananthapuram, in which Anx.A3 judgment was passed,
Sreedharan was the sole respondent. In the subsequent O.P
No.881/2004, the Family Court, Thiruvananthapuram, by way of
Anx.R1 judgment, held that the petitioner No.1 cannot claim to be
O.P (CAT) No.210 of 2017
the legally wedded wife of Sreedharan since, on the date on which
the marriage was taken place, Sreedharan had his wife Kamalamma
living. The Family Court held that there cannot be a valid marriage
between Sreedharan and the petitioner No.1, as alleged, in view of
the bar contained in Sec.5(i) of the Hindu Marriage Act.
19. The petitioners preferred Mat.Appeal No.455/2007
challenging Anx.R1 judgment before this Court. As per Anx.R2
judgment dated 02-07-2008, which was reviewed as per order dated
11-06-2010 in R.P No.313/2010, this Court dismissed the appeal
without prejudice to the liberty of the petitioners to approach the
Family Court by way of a proper suit or proceeding after impleading
the said Kamalamma.
20. Now, the petitioners, relying on Ext.P5 certificate,
contend that Sreedharan after dissolving his marital tie with
Kamalamma married petitioner No.1 on 20-03-1994 as per
customary rights. The petitioners also relied on Ext.P6 copy of
ration card and Ext.P7 pension payment order to substantiate their
contention.
21. In the various proceedings before the Tribunal and in
Mat.Appeal No.455/2007 before this Court the petitioners were
O.P (CAT) No.210 of 2017
given the liberty to approach the Civil Court or Family Court for
seeking necessary reliefs by way of a proper suit or proceeding after
impleading Kamalamma.
22. In view of the nature of contentions raised by the parties
we are of the view that, for the effectual adjudication of the lis, the
following issues are to be resolved.
(a) Whether the petitioners established the facts and
circumstances sufficient to raise a presumption that
Sreedharan died.
(b) Is petitioner No.1 the legally wedded wife of Sreedharan?
(c) If assuming petitioner No.1 is not the legally wedded wife,
whether petitioners 2 & 3 are the children of Sreedharan.
(d) Even if petitioners 2 & 3 are illegitimate, are they not entitled
to succeed to the estate of the deceased?
23. The "presumption of death" is a rule of evidence which
determines the sufficiency of certain facts to discharge the burden of
proof from the party on whom it is placed by the pleadings. The
relevant provisions are dealt with in Secs.107 and 108 of the Indian
Evidence Act.
"Sec.107. Burden of proving death of person known to
O.P (CAT) No.210 of 2017
have been alive within thirty years.- When the question is
whether a man is alive or dead, and it is shown that he was alive
within thirty years, the burden of proving that he is dead is on the
person who affirms it.
Sec.108. Burden of proving that person is alive who has
not been heard of for seven years.-Provided that when the
question is whether a man is alive or dead, and it is proved that he
has not been heard of for seven years by those who would naturally
have heard of him if he had been alive, the burden of proving that he
is alive is shifted to the person who affirms it ."
Both the presumptions under Secs.107 and 108 come into play after
a suit is instituted. The presumption of life prevails until displaced
by the proof of actual death or proof of facts raising the presumption
of death, and in the latter case presumption of death prevails till
actual existence of life is proved.
24. Where a person has not been heard of for seven years
when a suit is instituted, Sec.108 comes into operation and raises a
presumption that at the institution of the suit he was dead, but that
no presumption arises as to the date of his death [vide Punjab v.
Natha (A.I.R 1931 Lah. 582) and Kunju Kesavan v. M.M.Philip (A.I.R
1964 S.C. 164)].
25. What the Court may presume under Sec.108 is confined to
the factum of death {vide Mohammad Sharif v. Bande Ali [8 A.L.J
1052 (F.B)]}.
26. Sufficient evidence is necessary to raise a presumption
O.P (CAT) No.210 of 2017
about the death of a person under Sec.108 of the Indian Evidence
Act [vide N.Jayalakshmi Ammal v. R.Gopala Pathar (A.I.R 1995 S.C
995)].
27. On 'the presumption of death' arising from absence the
learned Authors, in Corpus Juris Secundum, Volume 25A, page
No.550, Note 6, comment thus:
"The unexplained absence of a person from his last and usual
place of residence without having been heard from for a period of
seven years raises a presumption of his death, both at common law
and under statutes declaratory of the common law. The reason for the
presumption is that it has been found necessary, on grounds of public
policy, that rights depending on life or death of persons long absent
and unaccounted for, should not remain in abeyance indefinitely but
should be settled according to some fixed rule. A presumption of death
may also arise under statutes which are not necessarily declaratory of
the common-law rule. Under some statutes, a period shorter than
seven years is prescribed, at least according to some judicial
declarations, for certain purposes. Statutes prescribing a particular
rule as to proof of death in certain matters or proceedings do not
preclude the application of the common-law presumption as to other
matters or proceedings.
The presumption of death is effective for practically all legal
purposes, including proceedings involving real property, and is
available as a method of proof of death in cases where death is a
jurisdictional fact that must be made to appear . The presumption
must be applied with caution to prevent fraud and injustice."
28. On the presumptions of life and death, in Halsbury's laws
of England-Fourth Edition, Volume 17, paragraph No.115 the learned
author writes thus:
"Presumptions of life and death. There is generally no
presumption of law by which the fact that a person was alive or dead on
a given date can be established, but the question must be decided on the
facts of the particular case.
Certain exceptions to this general rule are provided by statute,
and, in addition, where there is no acceptable affirmative evidence that a
O.P (CAT) No.210 of 2017
person was alive at some time during a continuous period of seven years
or more and it is proved that there are persons who would be likely to
have heard of him over that period, that those persons have not heard of
him, and that all due inquiries have been made appropriate to the
circumstances there arises a rebuttable presumption of law that he died
sometime within that period."
29. On the burden of proof, admissibility of evidence and the
weight and sufficiency of evidence to establish the presumption of
death, in Corpus Juris Secundum, Volume 25 A, page No.555, Note
6, the authors write thus:
"The burden of proving the facts giving rise to the
presumption rests on the party invoking the presumptions.
Admissibility of evidence. Any competent evidence of facts
and circumstances which tend to support the presumption of death is
admissible.
The weight and sufficiency of the evidence necessary to
establish the presumption of death is governed by the general rules as to
the weight and sufficiency of evidence in civil actions, and in various
cases the evidence has been held sufficient or insufficient to establish the
presumption. It has been held that before death will be presumed, the
evidence must remove any reasonable probability that the absentee is
alive."
30. The petitioners are at liberty to invoke the rule of "the
presumption of death" in the manner known to law. In fact, it is
necessary on the ground of public policy, that rights depending on
life or death of a person (Sreedharan in the instant case) who is
allegedly absent from his usual place of residence without having
been heard from for a period of 7 years, should not remain
unaccounted for indefinitely but should be settled in accordance
with law. It is settled that the presumption of death is practically
O.P (CAT) No.210 of 2017
available for all legal purposes including proceedings relating to
property. It is to be noted that the burden of proving the facts giving
rise to the presumption lies on the party invoking the presumption.
The authorities referred to above suggest that the presumption, a
rebuttable presumption of law that the person died sometime within
the period of 7 years or more, must be applied with caution to
prevent fraud and injustice. The classic example is British India's
most iconic litigation- the Bhowal Sanyasi's case in which the
Sanyasi, who was presumed dead, instituted a suit seeking a
declaration that he was the Kumar (Prince) of Bhowal. The trial
court declared that the plaintiff therein was Kumar Ramendra
Narayan Roy (The Sanyasi) and that he was alive. The matter was
brought up to the Privy Council which confirmed the findings of the
trial court. [See Smt.Bibhabati Devi v. Kumar Ramendra
Narayan Roy and others (MANU/PR/0094/1946)= 1946 UK
PC 1; (1946 A.C.508, Privy Council). Hence it is significant that
before death will be presumed, the evidence must remove any
reasonable probability that the absentee is alive.
31. The question as to whether the petitioners established the
facts and circumstances to draw the presumption of death shall be
O.P (CAT) No.210 of 2017
an issue of fact in the trial.
32. Now coming to the marital status of petitioner No.1, as per
Sec.7 (b) of the Family Courts Act 1984, a Family Court shall have
and exercise the jurisdiction in respect of a suit or proceeding for a
declaration as to the validity of a marriage or as to the matrimonial
status of any person.
33. For a declaration as to the legitimacy of petitioners 2 and 3
also as per Sec.7(e) of the Family Courts Act, a Family Court is the
competent court.
34. The issues mentioned above are to be tried and resolved by
a Family Court/Civil Court in a properly instituted suit or other
proceeding.
35. The statutory Tribunals are clothed with power of
adjudication of disputed questions. However the nature of such
adjudication by those authorities is generally summary in nature and
is circumscribed by the limit of statutory frame work for which those
authorities are created by the statute concerned. The Civil Court on
the other hand can decide factual questions as discussed above
conclusively and such determination by those courts unless modified
or nullified, would bind the parties finally. Every provision in the
O.P (CAT) No.210 of 2017
Code of Civil Procedure is moulded in such a way as to make the
determination of factual questions by the Civil Courts so elaborate
and conclusive and not capable of being vexed again by any of the
parties. In the scheme of the Code such decisions impliedly carry
even a declaration as to the legal character of the right or liability or
the estate in question.
36. While exercising the writ jurisdiction the constitutional
courts are never expected to undertake such arduous task of sifting
of the evidence relating to the questions posed above.
37. In a proceeding instituted under Articles 226 and 227 of
the Constitution of India this Court has intrinsic limitations in
resolving the issues relevant in the facts and circumstance of this
case.
38. We are of the view that this Court cannot allow its
constitutional jurisdiction to be used for deciding disputes for which
remedies under the civil law are available.
39. We are of the considered view that the Tribunal has rightly
held that the petitioners are not entitled to any reliefs in the original
application. We hold that the impugned order passed by the
Tribunal requires no interference at the hands of this court in
O.P (CAT) No.210 of 2017
exercise of the powers of the judicial review and superintendence.
40. We make it clear that the petitioners will have the liberty
to approach the proper forum as stated above.
With these observations the Original Petition will stand
dismissed.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
K.BABU, JUDGE
KAS
O.P (CAT) No.210 of 2017
APPENDIX OF OP (CAT) 210/2017
PETITIONER ANNEXURE
EXHIBIT P1 TRUE COPY OF THE O.A NO.958 OF 2015
FILED BEFORE THE CAT, ERNAKULAM.
ANNEXURE A1 TRUE COPY OF THE CERTIFICATE DATED 31-
05-2002 ISSUED BY THE SUB INSPECTOR OF
POLICE, MALAYINKEEZHU POLICE STATION
ANNEXURE A2 TRUE COPY OF THE SUCCESSION CERTIFICATE
DATED 17-11-2000 ISSUED BY THE
TAHSILDAR, NEYYATTINKARA
ANNEXURE A3 TRUE COPY OF THE JUDGMENT DATED 20-01-
2004 IN O.P NO.246 OF 2003 OF THE
FAMILY COURT, TRIVANDRUM
ANNEXURE A4 TRUE COPY OF THE JUDGMENT DATED 23-12-
1992 IN O.P NO.512 OF 1992 OF THE
FAMILY COURT, TRIVANDRUM
ANNEXURE A5 TRUE COPY OF THE WILL DATED 15-06-1992
EXECUTED BY SREEDHARAN
ANNEXURE A6 TRUE COPY OF THE JUDGMENT DATED 20-08-
2014 IN S.O.P NO.7 OF 2012 OF THE
PRINCIPAL SUBORDINATE JUDGE'S COURT,
TRIVANDRUM
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED
BY THE RESPONDENTS IN O.A.NO.958 OF
2015 OF THE ACT, ERNAKULAM
ANNEXURE R1 TRUE COPY OF THE JUDGMENT IN O.P
NO.881/2004
ANNEXURE R2 TRUE COPY OF THE JUDGMENT IN M.A
NO.455/2007
ANNEXURE R3 TRUE COPY OF THE JUDGMENT IN O.A
NO.400/2009
ANNEXURE R4 TRUE COPY OF THE JUDGMENT IN O.A
NO.829/2010
EXHIBIT P3 TRUE COPY OF THE ORDER IN OA NO.1885 OF
2013 (JANAKI DEVI V. THE GENERAL
MANAGER) DATED 12/8/2014 OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL, PRINCIPAL
BENCH
O.P (CAT) No.210 of 2017
EXHIBIT P4 TURE COPY OF THE ORDER IN OA NO. 958 OF
2015 DATED 22/6/2017 OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM
BENCH.
EXHIBIT P5 TRUE COPY OF THE MARRIAGE CERTIFICATE
ISSUED SREE SATHYA SAI ENTERPRISES,
KGKP HALL, MANGALACKAL, KATTAKADA P.O.
EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGE OF THE
RATION CARD ISSUED ON 30.12.1995.
EXHIBIT P7 TRUE COPY OF THE PENSION PAYMENT ORDER
ISSUED TO SRI.SREEDHARAN.
