Kerala High Court
Daisy vs The Southern Railway, Represented By ... on 13 February, 2025
Author: Amit Rawal
Bench: Amit Rawal
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
THURSDAY, THE 13TH DAY OF FEBRUARY 2025 / 24TH MAGHA, 1946
OP (CAT) NO. 171 OF 2024
AGAINST THE ORDER DATED 09.08.2024 IN OA NO.467 OF 2023 OF
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONER/APPLICANT:
DAISY,
AGED 53 YEARS,
MANNARKUNNUMAL HOUSE, CHEVAYUR PO,
KOZHIKODE, PIN - 673017
BY ADVS.
K.RAJEEV
V.VISAL AJAYAN
NIVEDITHA R. MENON
SREELAKSHMI SURESH
RESPONDENTS/RESPONDENT:
1 THE SOUTHERN RAILWAY, REPRESENTED BY ITS MANAGER
PARK TOWN, CHENNAI, TAMIL NADU, PIN - 600003
2 THE SENIOR DIVISIONAL PERSONNEL OFFICER
DIVISIONAL OFFICE, SOUTHERN RAILWAY,
PALAKKAD, PIN - 678002
BY ADV K.S.PRENJITH KUMAR
THIS OP (CAT) HAVING COME UP FOR HEARING ON 13.02.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
C.R
JUDGMENT
K. V. JAYAKUMAR,J.
This original petition is directed against the order of the
Central Administrative Tribunal in O.A.No.467 of 2023 dated
09.08.2024, whereby the following claims of the
petitioner/applicant has been rejected:
"1. Call for the records leading to Annexure A5 and set aside
the same;
2. Issue a Declaration that the applicant is entitled for the grant
of Family pension;
3. Issue an order directing the respondent to pay family pension
to the applicant;
4. Issue an order directing the respondents to disburse the
family pension benefits to the applicant withheld by the
respondent after the death of the applicant's husband K. Sunny;
5. Issue an order directing the respondents to pay the arrears of
the Family Pension with 12% interest to the applicant;
6. To grant such other reliefs as this Hon'ble Court may deem
just and fit in the circumstances of the case; and
7. To award cost to the applicant.
2. The brief facts necessary for the disposal of the original
petition are as follows:
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One K. Sunny was a Loco Pilot in the Indian Railways,
who entered in service on 15.12.1948. The said Sunny took
voluntary retirement on 02.11.1977, and was drawing a pension
from the Railways with effect from 31.05.2005. While so, the said
Sunny died on 25.06.2012.
3. During his lifetime, he married one Theresa, and three
children were born in that wedlock. The marriage between Sunny
and Theresa was dissolved by an order dated 28.09.2011 in OP
No.361 of 2011 of Family Court, Kozhikode. The
petitioner/applicant, Smt. Daisy, approached the Railways claiming
that Sunny had married her on 15.12.2000 and is entitled to
family pension. The petitioner submitted a request claiming family
pension in the Southern Railway and vide Annexure A5 order, it
was rejected on the ground that Sunny had married the applicant
prior to the dissolution of his first marriage with Theresa, and
subsequent dissolution of marriage will not ratify the marriage
allegedly solemnized between Sunny and the petitioner.
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4. Aggrieved by Annexure A5 order of the Southern
Railway, the petitioner, Daisy, knocked the doors of the Central
Administrative Tribunal and preferred OA No.613 of 2014 claiming
family pension. The Railway Board rejected the claim contending
that Annexure R-2(2), the family membership certificate of Sunny
of 2012, showed Theresa as the first wife and the applicant as
second wife. However, another certificate issued by the same
Village Officer one year thereafter and relied on by the applicant
showed that the applicant alone as the second wife. The Tribunal
dismissed the original application holding that the family
membership certificate produced by the petitioner was not reliable
and directed the petitioner/applicant, Daisy, to establish her
relationship with the deceased Railway employee with valid
documents.
5. Accordingly, the applicant approached Family Court,
Kozhikode, and instituted OP No.274/2023 to declare that the
applicant's marriage allegedly solemnized on 15.12.2000 with
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Sunny was legal and valid. Vide Annexure A7 judgment and
decree, Family Court declared that the applicant petitioner was the
legally wedded wife of Sunny. The petitioner/applicant
approached the Tribunal again and preferred the present O.A.
claiming family pension on the basis of Annexure A7 judgment of
the Family Court.
6. The respondents/Railways resisted the claim of the
petitioner/applicant on the ground that her marriage with Sunny
was not legal and no legal right had devolved on her. The
Railway contended that, during the lifetime of Sunny, he had not
nominated either his wife Theresa, or the applicant as his
nominee. The marriage with the applicant was not intimated to
the Railways.
7. Railways further contended that the relationship of
Sunny with the petitioner as per registered document No.430 of
2000 registered at SRO, Kozhikode, is only a contract to live
together. It was not a marriage as solemnized under the personal
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law applicable to the parties and the said documents do not confer
legal status of wife to the petitioner.
8. The Tribunal noticing the rival contention of the
parties rejected the claim of the petitioner.
9. Aggrieved by the order of the Tribunal, the petitioner,
Daisy, preferred this original petition.
10. Adv. Prenjith Kumar, the learned Central Government
Counsel, submitted that the impugned order of the Central
Administrative Tribunal is legally sustainable and no interference is
warranted in this matter under Article 227 of the Constitution.
11. Per contra, Adv. K. Rajeev, the learned counsel for
the petitioner/applicant submitted that the impugned order of the
Central Administrative Tribunal is patently illegal and
unsustainable in the eyes of law.
12. We have heard the rival contentions of the counsel
for the parties and appraised the paper books.
13. The first submission by Adv. K. Rajeev is that the
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Tribunal is bound by Annexure A7 decree and judgment of the
Family Court, Kozhikode, whereby it is declared that the
petitioner, Daisy, is the legally wedded wife of late Sunny. The
Central Administrative Tribunal cannot sit in appeal against the
judgment and decree of the Family Court.
14. It is further submitted that the Family Court has
exclusive jurisdiction to deal with matters connected with the
matrimonial issues. The Tribunal has no jurisdiction or power to
sit in appeal against the judgment and decree of the Family Court.
15. Adv. K. Rajeev, further submitted that the Tribunal
has gone to the extent of sitting in appeal against the decree of
the Family Court and found that the decrees were obtained by
collusion and without impleading the necessary parties. Since the
Central Administrative Tribunal had made some observations as to
the validity of the judgment and decree of the Family Court, and
thereby, the valuable right of family pension of the
petitioner/applicant is denied to her. The Tribunal not only found
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that the decree obtained from the Family Court is not valid, but
also opined that the petitioner had a live in relationship with
deceased Sunny.
16. Adv. Prenjith Kumar, the learned Central Government
Counsel, submitted that Annexure A7 decree and judgment of the
Family Court is an ex parte decree, wherein the necessary parties
were not impleaded. The first wife, Theresa, was not arrayed as a
party. Adv. Prenjith Kumar, CGC, further submitted that a
person professing Christian religion cannot solemnize another
marriage during the subsistence of his first marriage. In the
instant case, the petitioner admits that, she married late Sunny
before he obtained the divorce from his first wife, Theresa.
Therefore, the alleged second marriage of the petitioner to the said
Sunny is void ab initio. Even the subsequent dissolution of
marriage between Sunny and Theresa will not validate the second
marriage. Therefore, Adv. Prenjith Kumar submitted that, the first
wife, Theresa, alone is entitled to the family pension.
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17. Upon hearing the rival submissions, the following
issues arises for our consideration for the adjudication of the
controversy.
1. Whether the Central Administrative Tribunal is bound by a
decree and judgment of a Family Court?
2. Whether the Central Administrative Tribunal can sit in appeal
against the decree and judgment of Family Court?
3. What is the legal effect of an ex parte decree?
18. Before further discussion, it may be useful to extract
the relevant provisions of the Family Courts Act.
7. Jurisdiction.--(1) Subject to the other provisions of this Act, a
Family Court shall--
(a) have and exercise all the jurisdiction exercisable by any
district court or any subordinate civil court under any law for
the time being in force in respect of suits and proceedings of the
nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction
under such law, to be a district court or, as the case may be,
such subordinate civil court for the area to which the jurisdiction
of the Family Court extends.
Explanation.--The suits and proceedings referred to in this sub-
section are suits and proceedings of the following nature, namely:
--
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(a) a suit or proceeding between the parties to a marriage for a
decree of nullity of marriage (declaring the marriage to be null
and void or, as the case may be, annulling the marriage) or
restitution of conjugal rights or judicial separation or dissolution
of marriage;
(b) a suit or proceeding for a declaration as to the validity of a
marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with
respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in
circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of
any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the
person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family Court
shall also have and exercise--
(a) the jurisdiction exercisable by a Magistrate of the first class
under Chapter IX (relating to order for maintenance of wife,
children and parents) of the Code of Criminal Procedure, 1973 (2
of 1974); and
(b) such other jurisdiction as may be conferred on it by any
other enactment."
19. On a mere perusal of Section 7 of the Family Courts
Act, it is clear that the Family Court has got exclusive jurisdiction
with respect to matrimonial matters.
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20. In Balram Yadav v. Fulmaniya Yadav (2016 KHC
6310), the Apex Court observed that Family Courts have the
exclusive jurisdiction as to the validity of the marriage, paragraph
7 of Balram Yadav's case (supra) reads thus:
7. Under S.7(1) Explanation (b), a Suit or a proceeding for a
declaration as to the validity of both marriage and matrimonial
status of a person is within the exclusive jurisdiction of the
Family Court, since under S.8, all those jurisdictions covered
under S.7 are excluded from the purview of the jurisdiction of
the Civil Courts. In case, there is a dispute on the matrimonial
status of any person, a declaration in that regard has to be
sought only before the Family Court. It makes no difference as to
whether it is an affirmative relief or a negative relief. What is
important is the declaration regarding the matrimonial status.
S.20 also endorses the view which we have taken, since the
Family Courts Act, 1984, has an overriding effect on other laws.
21. In Rema T. v. A.K. Radhamani (2024(1) KHC 406) this
Court observed that the Family Court has jurisdiction to entertain
a suit or proceedings for a declaration as to the validity of a
marriage or as to the matrimonial status of any person.
22. Section 19 of the Family Courts Act, 1984 further
provides that, an appeal lies to High Court from every judgment
or order passed by a Family Court. Section 19 reads thus:
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"19. Appeal.-
(1)Save as provided in sub-section (2) and notwithstanding anything contained in the
Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure,
1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or
order, not being an interlocutory order, of a Family Court to the High Court both on
facts and on law.
(2)No appeal shall lie from a decree or order passed by the Family Court with the
consent of the parties or from an order passed under Chapter IX of the Code of
Criminal Procedure, 1973 (2 of 1974):Provided that nothing in this sub-section shall
apply to any appeal pending before a High Court or any order passed under Chapter
IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of
the Family Courts (Amendment) Act, 1991 (59 of 1991).
(3)Every appeal under this section shall be preferred within a period of thirty days
from the date of the judgment or order of a Family Court.
(4)The High Court may, of its own motion or otherwise, call for and examine the
record of any proceeding in which the Family Court situate within its jurisdiction
passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of
1974) for the purpose of satisfying itself as to the correctness, legality or propriety of
the order, not being an interlocutory order, and, as to the regularity of such
proceeding.
(5)Except as aforesaid, no appeal or revision shall lie to any court from any
judgment, order or decree of a Family Court.
(6)An appeal preferred under sub-section (1) shall be heard by a Bench consisting of
two or more Judges."
23. On bare perusal of Section 7 and Section 19, it is
crystal clear that, Family Court has exclusive jurisdiction and
power to deal with issues connected with the matrimonial relations
and an appeal lies to the High Court against the orders/judgments
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of the Family Court. The Central Administrative Tribunal has no
power or jurisdiction to sit in appeal with respect to a
decree/order passed by the Family Court. Such matters are
beyond the scope of the authority conferred to the Central
Administrative Tribunal under the Administrative Tribunals Act,
1985.
24. The next submission by the learned counsel for the
petitioner/applicant is that, eventhough, Annexure A7 decree is an
ex parte decree, it is effective and valid, as if it were a bi-parte
decree. The declaration from a Family Court with respect to the
marital status of a party is a judgment in rem, and therefore, it is
valid and binding, unless and until the judgment is set aside.
25. On the other hand, Adv. Prenjith Kumar submitted
that the decree and judgment of the Family Court were obtained
without impleading the first wife, Theresa, her children alone were
arrayed as parties in OP No. 274 of 2023.
26. The Tribunal, noticing the rival contentions of the
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counsel for the parties, dismissed the original application, holding
that Annexure A7 decree and judgment of the Family Court was a
collusive one, apparently null and void as obtained without
impleading the necessary parties. The relevant paragraphs of the
order of the Central Administrative Tribunal are extracted
hereunder:
"12. It is evident that the applicant had sought for a
declaration of her marriage with Sunny solemnized on
15.12.2000 as legal and valid. Admittedly, Theresa was the
wife of Sunny during that period. Evidently in such a
declaratory proceeding where applicant set up a rival claim as
against Theresa, she ought to have been in the party array.
Without arraying her in the party array, she arrayed the
children born in her matrimonial relationship and a decree
was obtained. It seems that the respondents therein appeared
and submitted that they have no objection in declaring that
the applicant was the legally wedded wife. The applicant has
no case that Theresa was not alive during the relevant period.
Under what circumstance, the necessary party to such a
proceeding was excluded from an adjudication is not evident
from the proceedings.
13. Relying on the decision of the Supreme Court in Sunder
Dass v. Ram Prakash [1977 (2) SCC 662] at paragraph 3, it
was contended that a suit obtained in such a manner is null
and void, and not sustainable. It was also contended that in a
case where the decree was obtained by not impleading the
appropriate person in the party array, the matter is not legally
sustainable. To supplement this contention the learned ACGSC
relied on the decisions in Kiran Singh v. Chaman Paswan (AIR
1954 SC 340), Seth Hiralal Patni v. Sri Kali Nath (AIR 1962 SC
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199) and Deena (dead) through LRs v. Bharath Singh (dead)
through LR's [(2002) 6 SCC 336].
14. Evidently, applicant is relying on Annexure A7 decree and
judgment of the Family Court. The most essential party to
such a declaratory suit was not made a party. Hence, it seems
that either the decree obtained was a collusive one or
apparently null and void as one obtained without impleading
the necessary party to the proceeding. Hence, I feel that it
will not be legally justifiable to rely on such a document and
to grant relief to the applicant. No relief can be granted to the
applicant in the above circumstances."
27. On going through the order of the Central
Administrative Tribunal and upon hearing the submissions of the
counsel across the Bar, we are unable to agree with the reasoning
of the learned Central Administrative Tribunal. Annexure A7
decree and judgment obtained from a Family Court declared that
the petitioner is the legally wedded wife of late Sunny, which is
valid and effective.
28. The Family Court vide Annexure A7 judgment
categorically declared that the applicant is the legally wedded wife
of deceased Railway employee, Sunny. It would be worthwhile to
extract the relevant paragraphs of Annexure A7 judgment:
"3. The respondents 1 to 3 entered appearance and filed
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counter admitting the petition averments. According to them
they have no objection in declaring that the petitioner is the
legally wedded wife of their father late K. Sunny.
4. Heard.
5. Exts. A1 to A8 are marked.
6. The case of the petitioner is that she is the legally wedded
wife of Late K. Sunny whose marriage was solemnized on
15.12.2000. According to petitioner the marriage of Late K.
Sunny with his former wife named Theresa stands dissolved by
the Family Court, Kozhikode as per the judgment pronounced in
OP 361/2011 dated 28.09.2011. According to petitioner she is
entitled for the family pension of Late K. Sunny who was serving
as Loco pilot in Indian Railway, Respondents 1 to 3 are the
children of Late K. Sunny were born in the wedlock with Theresa
and they admitted the claim of the petitioner. Ext.A1 is the
copy of agreement bearing No.430/2000 registered before Sub
Registrar Office, Kozhikode. Ext.A2 is the copy of judgment in
OP 361/2011 dated 28.09.2011 of Family Court, Kozhikode.
Ext.A3 is the copy of death certificate of Late K. Sunny, Ext.A4
is the legal heirship certificate of Late K. Sunny. Ext.A5 is the
family membership certificate of Late K. Sunny. Ext.A6 is the
pension payment order issued by Southern Railway to Late K.
Sunny. Ext.A7 is the letter given by Railway to the petitioner
and Ext.A8 is the copy of the order of Central Administrative
Tribunal, Ernakulam dated 18.05.2015. On perusal of the
document it is clear that petitioner is the legally wedded wife of
Late K. Sunny. Hence she is also entitled for family pension and
other benefits which are a legally wedded wife is entitled.
Hence the petition is allowed.
In the result, the petition is allowed. It is hereby
declared that petitioner is the legally wedded wife of Late K.
Sunny whose marriage was solemnized on 15.12.2000. No order
as to costs."
(Emphasis Supplied)
29. It is trite law that the ex-parte decree is valid and
effective, like the bi-parte/contested decree. The judgment and
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decree of a Family Court with respect to the marital status of
parties is a judgment in rem. The Tribunal is bound by the
decree, and it cannot sit in appeal and express an opinion as to
the validity or otherwise of the decree.
30. The Honourable Apex Court in Vijay Singh v. Shanti
Devi & Another [(2017)8 SCC 837] observed that an ex parte
decree is also a valid decree and it has the same force as a decree
passed on contest, as long as it is not recalled or set aside, it is
legal and binding upon the parties concerned.
31. The Honourable Apex Court in State of Bihar and
Others v. Sri Radha Krishna Singh and Others (1983 KHC 448)
observed that: a judgment in rem like judgments, passed in
probate, insolvency, matrimonial or guardianship or other similar,
proceedings, is admissible in all cases whether such judgments are
inter partes or not.
32. In Deccan Paper Mills Co. Ltd. v. Regency Mahavir
Properties and Others (2020 KHC 6494), the Honourable Apex
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Court had occasion to discuss about the right in rem and right in
personam. Paragraph 20 of Deccan Paper Mills Co. Ltd.'s case
(supra) is extracted hereunder:
"20. In R. Viswanathan v. Rukn - ul - Mulk Syed Abdul Wajid,
1963 KHC 444 : 1963 (3) SCR 22 : AIR 1963 SC 1, this Court set
out the Roman law concept of jus in rem as follows:
"Roman lawyers recognised a right either as a jus in rem or a
jus in personam. According to its literal meaning "jus in rem" is
a right in respect of a thing, a "jus in personam" is a right
against or in respect of a person. In modern legal terminology a
right in rem, postulates a duty to recognise the right imposed
upon all persons generally, a right in personam postulates a duty
imposed upon a determinate person or class of persons. A right
in rem is therefore protected against the world at large; a right
in personam against determinate individuals or persons. An
action to enforce a jus in personam was originally regarded as an
action in personam and an action to enforce a jus in rem was
regarded as an action in rem. But in course of time, actions in
rem and actions in personam acquired different content. When in
an action the rights and interest of the parties themselves in the
subject - matter are sought to be determined, the action is in
personam. The effect of such an action is therefore merely to
bind the parties thereto. Where the intervention of the Court is
sought for the adjudication of a right or title to property, not
merely as between the parties but against all persons generally,
the action is in rem. Such an action is one brought in the
Admiralty Division of the High Court possessing Admiralty
jurisdiction by service of process against a ship or cargo within
jurisdiction. There is another sense in which an action in rem is
understood. A proceeding in relation to personal status is also
treated as a proceeding in rem, for the judgment of the proper
court within the jurisdiction of which the parties are domiciled is
by comity of nations admitted to recognition by other courts. As
observed by Cheshire in his "Private International Law", Sixth
Edition at page 109, "In Roman law an action in rem was one
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brought in order to vindicate a jus in rem, i.e., a right such as
ownership available against all persons, but the only action in
rem known to English law is that which lies in an Admiralty
court against a particular res, namely, a ship or some other res,
such as cargo, associated with the ship." Dealing with judgments
in rem and judgments in personam. Cheshire observed at page
653, "It (judgment in rem) has been defined as a judgment of a
court of competent jurisdiction determining the status of a person
or thing (as distinct from the particular interest in it of a party
to the litigation); and such a judgment is conclusive evidence for
and against all persons whether parties, privies or strangers of
the matter actually decided........... A judgment in rem settles the
destiny of the res itself 'and binds all persons claiming an
interest in the property inconsistent with the judgment even
though pronounced in their absence'; a judgment in personam,
although it may concern a res, merely determines the rights of
the litigants inter se to the res." (at pp. 43-44)
Also, a judgment in rem has been described in Satrucharla Vijaya
Rama Raju v. Nimmaka Jaya Raju, 2006 KHC 23 : (2006) 1 SCC
212 : AIR 2006 SC 543 as follows:
"10. ... A judgment in rem is defined in English law as "an
adjudication pronounced (as its name indeed denotes) by the
status, some particular subject - matter by a tribunal having
competent authority for that purpose". Spencer Bower on Res
Judicata defines the term as one which "declares, defines or
otherwise determines the status of a person or of a thing, that is
to say, the jural relation of the person or thing to the world
generally"..."
Judged by these authorities, it is clear that the proceeding under
S.31 is with reference to specific persons and not with reference
to all who may be concerned with the property underlying the
instrument, or "all the world". Clearly, the cancellation of the
instrument under S.31 is as between the parties to the action and
their privies and not against all persons generally, as the
instrument that is cancelled is to be delivered to the plaintiff in
the cancellation suit. A judgment delivered under S.31 does not
bind all persons claiming an interest in the property inconsistent
with the judgment, even though pronounced in their absence."
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33. In Ramachandran Panakam and Others v. Union of
India and Others (2021 KHC 739), this Court held that a judgment
in rem means an adjudication pronounced upon the status of a
person by a competent court to the world generally. Paragraph 7
of Ramachandran's case (supra) is extracted hereunder:
At this juncture, we deem it fit to consider a few
decisions on judgment in rem as hereunder:
(1) In Ganesh Singh v. Hari Singh and Others (2003 (1) WLC
379), the High Court of Rajasthan held as under:
"22. A judgment in rem means an adjudication pronounced
upon the status of a person or thing, by a competent Court
to the word generally. But it is not conclusive proof of the
facts constituting the reasons for the decision. In such
circumstances, the order is conclusive only as regards the
status but not as regards the grounds on which it is based."
(ii) In Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju
(2006 KHC 23 : 2006 (1) SCC 212 : AIR 2006 SC 543) , a
judgment in rem has been described by the Hon'ble Apex
Court as under:
"10. ... A judgment in rem is defined in English law as "an
adjudication pronounced (as its name indeed denotes) by the
status, some particular subject - matter by a tribunal having
competent authority for that purpose". Spencer Bower on
Res Judicata defines the term as one which "declares,
defines or otherwise determines the status of a person or of
a thing, that is to say, the jural relation of the person or thing
to the world generally"...
(iii) In C. L. Pasupathy v. Engineer in Chief (WRO) (2009 (2)
MLJ 491), the Madras High Court has considered the
expressions, "judgment'in rem' or a judgment 'in
personam'", as under:
"27. ......... Historically the term judgment"in rem" was used
in Roman law in connection with actio but not in connection
with "jus actio in personam". The effect of "actio in rem"
was to conclude against all mankind, but the effect of "actio
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in personam" was to conclude with regard to the individual
only. After the Roman forms of procedure had passed away,
the term "in rem" survived to express the effect of an action
"in rem" and gradually, it came to import "generally".
Xxxx xxxx xxxx
29. Courts have held that, "Judgment in rem", operates on a
thing or status rather than against the person and binds all
persons to the extent of their interest in the thing, whether
or not they were parties to the proceedings. The
judgment"in rem", as distinguished from judgment "in
personam" is an adjudication of some particular thing or
subject matter, which is the subject of controversy, by a
competent Tribunal, and having the binding effect of all
persons having interests, whether or not joined as parties to
the proceedings, insofar as their interests in the "res" are
concerned. In determining whether a judgment is "in rem",
the effect of the judgment is to be considered and it is tested
by matters of substance, rather than by measure of any
particular draft or form.
A final judgment on the merits in a particular proceeding, "in
rem" is an absolute bar to subsequent proceedings founded
on the same facts and a judgment "in rem" may be pleaded
as a bar to another action of the same subject matter, if its
effect is to merge a distinct cause of action, but not
otherwise. The judgment "in rem" operates as a bar or
estoppel only to the "res" or matter within the jurisdiction of
the Court and does not prevent a subsequent action for
personal relief, which could not be obtained in the first
action. Thus with respect to the "res or status", a "judgment
in rem" has to be conclusive and binding upon "all the
world" that is, on all the persons, who may have or claim any
right or interest in the subject matter of litigation, whether or
not, they were parties to or participants in the action, atleast
to the extent, that it adjudicates or establishes a status, title
or res, constituting the subject matter of the action, a
"judgment in rem" will operate as a estoppel, in a
subsequent action in respect of the points or questions
adjudicated."
(iv) In State of Uttar Pradesh and Others v. Arvind Kumar
Srivastava and Others (2014 KHC 4682 : 2015 (1) SCC 347) ,
the Hon'ble Apex Court dealt with the issue as to the
entitlement of benefit of 'judgment in rem', with an intention
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to benefit all similarly situated persons irrespective of
whether they had approached the Court or not. It is held
therein that when a particular set of employees is given
relief by Court, all other identically situated persons should
be treated alike by extending the same benefit, since not
doing so would amount to discrimination and be violative of
Art.14 of the Constitution of India."
34. In Narayanan Nambiar M.P. v. Ebin Viswanath V.
(2024 KHC 228), this Court opined that judgment in rem would
operate as res judicata against the world and judgment in
personam would operate as res judicata only against the parties in
dispute. It was further observed that judgment in rem is
conclusive evidence for and against all persons whether parties,
privies or strangers of the matter actually decided. Paragraphs 17,
18 and 19 in Narayanan Nambiar M.P.'s case (supra) reads as
follows:
"17. A judgment is a formal expression of conclusive
adjudication of the rights and liabilities of the parties. The judgment
may operate in two ways, in rem or in personam. S.41 of the
Evidence Act, 1872 which deals with relevancy of judgments in the
context of conclusiveness of a judgment, order or decree reads
thus;
"41. Relevancy of certain judgments in probate, etc. jurisdiction.--A
final judgment, order or decree of a competent court, in the
exercise of probate, matrimonial, admiralty or insolvency
jurisdiction, which confers upon or takes away from any person any
legal character, or which declares any person to be entitled to any
such character, or to be entitled to any specific thing, not as
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against any specified person but absolutely, is relevant when the
existence of any such legal character, or the title of any such
person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof--
that any legal character, which it confers accrued at the time when
such judgment, order or decree came into operation;
that any legal character, to which it declares any such person to be
entitled, accrued to that person at the time when such judgment,
order or decree declares it to have accrued to that person;
that any legal character which it takes away from any such person
ceased at the time from which such judgment, order or decree
declared that it had ceased or should cease;
and that anything to which it declares any person to be so entitled
was the property of that person at the time from which such
judgment, order or decree declares that it had been or should be
his property."
18. In Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., 2011
(5) SCC 532 the Apex Court held that a right in rem is a right
exercisable against the world at large, as contrasted from a right in
personam which is an interest protected solely against specific
individuals. Actions in personam refer to actions determining the
rights and interests of the parties themselves in the subject -
matter of the case, whereas actions in rem refer to actions
determining the title to property and the rights of the parties, not
merely among themselves but also against all persons at any time
claiming an interest in that property. Correspondingly, a judgment
in personam refers to a judgment against a person as distinguished
from a judgment against a thing, right or status and a judgment i n
rem refers to a judgment that determines the status or condition of
property which operates directly on the property itself. (Vide
Black's Law Dictionary)
19. In Vidya Drolia v. Durga Trading Corporation, 2021 (2) SCC 1 a
Three - Judge Bench of the Apex Court reiterated that a judgment in
rem determines the status of a person or thing as distinct from the
particular interest in it of a party to the litigation; and such a judgment
is conclusive evidence for and against all persons whether parties, privies
or strangers of the matter actually decided. Such a judgment settles the
destiny of the res itself and binds all persons claiming an interest in the
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property inconsistent with the judgment even though pronounced in their
absence. By contrast, a judgment in personam, 'although it may concern
a res, merely determines the rights of the litigants inter se to the res'.
Distinction between judgments in rem and judgments in personam turns
on their power as res judicata, i.e., judgment in rem would operate as
res judicata against the world, and judgment in personam would operate
as res judicata only against the parties in dispute."
35. It is pertinent to note that, in the first round of
litigation, the Tribunal observed that a declaration to the effect
that the petitioner is the legally wedded wife from a competent
court is necessary for the claim of family pension of the petitioner.
When the petitioner came up with such a declaration, the Tribunal
took the view that Annexure A7 decree and judgment of the
Family Court are not valid and legal.
36. In the light of the above discussion, we are of the
considered opinion that, the Tribunal is not justified in rejecting
the claim of the petitioner/applicant. The Central Administrative
Tribunal has no power or jurisdiction to sit in appeal against a
judgment pronounced by a Family Court. The Tribunal could
exercise jurisdiction within the limits of the power vested on it
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under Section 19 of the Administrative Tribunals Act, 1985.
37. The remedy available to a party aggrieved of a
judgment/order of Family Court is to prefer an appeal under
Section 19 of the Family Courts Act, 1984.
38. A final judgment/order of a Family Court, declaring
the marital status of parties to a marriage is a conclusive proof of
their status. Such a judgment is judgment in rem. In otherwords,
it upholds the right of a person, against the whole world under
Section 41 of the erstwhile Indian Evidence Act.
39. The upshot of the above discussion is that the
Tribunal has exceeded its jurisdiction vested in law, when the
Tribunal sat in appeal against a judgment of Family Court
declaring the marital status of the parties. The impugned order of
the Central Administrative Tribunal is legally unsustainable and
liable to be set aside. We, therefore, set aside the order of the
Central Administrative Tribunal in O.A.No.467/2023.
The original petition is allowed. Consequently, the
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original application is allowed. The respondents are directed to
disburse the family pension to the petitioner/applicant along with
interest at the rate of 6% per annum for the arrears. The
respondents shall complete the said exercise within a period of
two months from the date of receipt of this judgment.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
K. V. JAYAKUMAR
JUDGE
msp
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APPENDIX OF OP (CAT) 171/2024
PETITIONER ANNEXURES
Annexure A1 EXHIBIT P1 - O.A. NO. 180/467/2023 BEFORE THE
CENTRAL ADMINISTRATIVE TRIBUNAL - ANNEXURE A1
- TRUE COPY OF THE PENSION PAYMENT ORDER
ISSUED TO LATE K.SUNNY, HUSBAND OF THE
PETITIONER DATED 02.08.2005
Annexure A2 EXHIBIT P1 - O.A. NO. 180/467/2023 BEFORE THE
CENTRAL ADMINISTRATIVE TRIBUNAL - ANNEXURE
A2- TRUE COPY OF THE DEATH CERTIFICATE ISSUED
BY KOZHIKODE CORPORATION DATED 28.06.2012
Annexure A3 EXHIBIT P1 - O.A. NO. 180/467/2023 BEFORE THE
CENTRAL ADMINISTRATIVE TRIBUNAL - ANNEXURE A3
- TRUE COPY OF THE SURVIVING FAMILY MEMBER
CERTIFICATE DATED 30.08.2013 ISSUED BY
CHEVAYUR VILLAGE OFFICE
Annexure A4 EXHIBIT P1 - O.A. NO. 180/467/2023 BEFORE THE
CENTRAL ADMINISTRATIVE TRIBUNAL - ANNEXURE A4
- TRUE COPY OF THE ORDER DATED 28.09.2011 IN
O.P. NO. 361/2011 ON THE FILE OF THE FAMILY
COURT, KOZHIKODE.
Annexure A5 EXHIBIT P1 - O.A. NO. 180/467/2023 BEFORE THE
CENTRAL ADMINISTRATIVE TRIBUNAL - ANNEXURE
A5- TRUE COPY OF THE ORDER DATED 10.12.2013
OF THE SECOND RESPONDENT
Annexure A6 EXHIBIT P1 - O.A. NO. 180/467/2023 BEFORE THE
CENTRAL ADMINISTRATIVE TRIBUNAL - ANNEXURE
A6- TRUE COPY OF THE ORDER OF THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM DATED
18.05.2015
Annexure A7 EXHIBIT P1 - O.A. NO. 180/467/2023 BEFORE THE
CENTRAL ADMINISTRATIVE TRIBUNAL - ANNEXURE
A7- TRUE COPY OF THE DECREE AND JUDGMENT OF
THE HON'BLE FAMILY COURT, KOZHIKODE DATED
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OP (CAT) NO. 171 OF 2024
Annexure R(2)-1 EXHIBIT P2 - REPLY STATEMENT FILED BY THE
RESPONDENTS IN O.A. NO. 180/467/2023 BEFORE
THE CENTRAL ADMINISTRATIVE TRIBUNAL -
ANNEXURE R2(1) - TRUE COPY OF PENSION PAPER
FURNISHED BY LATE K.SUNNY REGARDING DETAILS
OF DEPENDENTS TO THE RAILWAY DEPARTMENT
Annexure R(2) - 2 EXHIBIT P2 - REPLY STATEMENT FILED BY THE
RESPONDENTS IN O.A. NO. 180/467/2023 BEFORE
THE CENTRAL ADMINISTRATIVE TRIBUNAL -
ANNEXURE R(2)-2 - TRUE COPY OF THE SURVIVING
FAMILY MEMBERSHIP CERTIFICATE DATED
14.08.2012 ISSUED BY VILLAGE OFFICER,
CHEVAYUR
Annexure R(2)-3 EXHIBIT P2 - REPLY STATEMENT FILED BY THE
RESPONDENTS IN O.A. NO. 180/467/2023 BEFORE
THE CENTRAL ADMINISTRATIVE TRIBUNAL -
ANNEXURE R(2)-3- - TRUE COPY OF STATEMENT OF
PARTICULARS OF FAMILY MEMBERS FOR FAMILY
PENSION IN THE PRESCRIBED FORM SUBMITTED BY
LATE K.SUNNY TO THE RAILWAY DEPARTMENT
Exhibit P1 ORIGINAL APPLICATION, O.A. NO. 180/467/2023
BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL
DATED 02.10.2023
Exhibit P2 REPLY STATEMENT FILED BY THE RESPONDENTS IN
O.A. NO. 180/467/2023 DATED 25.03.2024
Exhibit P3 REJOINDER STATEMENT FILED BY PETITIONER IN
O.A. NO. 180/467/2023 DATED 16.06.2024
Exhibit P4 ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL
IN O.A. NO. 180/467/2023 DATED 09.08.2024
