Madras High Court
K.Annammal vs Pushpa on 14 July, 2021
S.A. No.1315 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.07.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A. No.1315 of 2007 &
CMP.No.3340 of 2007
K.Annammal ... Appellant
Vs
1.Pushpa
2.The Welfare Officer,
O/o. The General Manager,
Personal Branch,
ICF, Indian Railway,
Chennai – 600 038.
3.The General Manager,
Union of India,
ICF, Indian Railway,
Chennai – 600 038 ... Respondents
PRAYER: Second Appeal filed under Section 100 C.P.C. against the
Judgment and Decree dated 25.02.2005 passed by the District and Sessions
Court / Fast Track Court No.1, Chennai – 1 in A.S.No.183 of 2004 preferred
by the 1st respondent against the decree and Judgment dated 19.03.2003 in
O.S.No.1849 of 1998 on the file of the XVI Assistant City Civil Court,
Chennai.
1/12
https://www.mhc.tn.gov.in/judis/
S.A. No.1315 of 2007
For Appellant : Mr.V.Chandrakanthan
For Respondent 1 : No appearance
For Respondents 2 &3 : Mr.C.V.Ramachandramoorthy
JUDGMENT
This second appeal has been filed challenging the reversal findings of
the lower appellate court under its judgement and decree dated 25.02.2005
passed in A.S.No.183 of 2004 by which, the suit filed by the
Appellant/plaintiff in O.S.No.1849 of 1998 came to be dismissed.
2. The Appellant is the plaintiff in the suit O.S.No.1849 of 1998 on
the file of the XVI Assistant City Civil Court, Chennai. She filed a suit
against the respondents 1 & 2/defendants 1 & 2 seeking for the following
reliefs:
(a) for mandatory injunction declaring that she is the legally wedded
wife of late P.Kasi;
(b) for mandatory injunction directing the first respondent/first
defendant to return back the original compromise agreement dated
19.02.1998 executed by the Appellant/plaintiff out of force and compulsion;
https://www.mhc.tn.gov.in/judis/
S.A. No.1315 of 2007
(c) for permanent injunction restraining the first respondent/first
defendant for obtaining terminal and death benefit of P.Kasi from the
second defendant.
3. It is the case of the Appellant/plaintiff as seen from the plaint that
she is the legally wedded wife of late P.Kasi who was employed with the
Indian Railways till his death on 11.04.1997. According to her, she was
nominated as a nominee by her husband late P.Kasi in the Railway records
and after his death, she submitted her representation on 15.05.1997 seeking
for settlement of terminal and death benefits of her late husband P.Kasi in
her favour.
4. A counter claim has been made by the first respondent/first
defendant before the Indian Railways claiming that she is the legally
wedded wife and she is alone entitled for the terminal benefits of late
P.Kasi. Since the Appellant/plaintiff was unable to get the terminal and
death benefit of P.Kasi from the respondents 2 and 3 who are his employers,
the Appellant/plaintiff has filed the suit in O.S.No.1849 of 1998.
https://www.mhc.tn.gov.in/judis/
S.A. No.1315 of 2007
5. A written statement was also filed by the first respondent/first
defendant in the said suit denying the allegations of the Appellant/plaintiff
and stating that she is the legally wedded wife of the deceased P.Kasi and
not the Appellant/plaintiff. According to her, she alone is entitled to get the
terminal and death benefits of late P.Kasi from the respondents 2 and 3.
6. Issues were framed by the trial court and the trial court after trial by
judgment and decree dated 19.03.2003 passed in O.S.No.1849 of 1998
decreed the suit in favour of the Appellant/plaintiff by declaring that the
Appellant/plaintiff is the legally wedded wife of the deceased P.Kasi and
has also granted consequential relief sought for in the suit. Aggrieved by the
said judgment and decree dated 19.03.2003 passed in O.S.No.1849 of 1998,
the first respondent/first defendant preferred an appeal before the lower
appellate court namely the District and Sessions Court, (Fast Track Court-
1), Chennai in A.S.No.183 of 2004.
7. By Judgment and Decree dated 25.02.2005 passed in A.S.No.183
of 2004, the lower appellate court reversed the findings of the trial court by
https://www.mhc.tn.gov.in/judis/
S.A. No.1315 of 2007
dismissing the suit O.S.No.1849 of 1998 filed by the Appellant/plaintiff.
The lower appellate court has allowed the appeal filed by the first
respondent/first defendant based upon the evidence of DW3 and DW4 who
are the daughters of the Appellant/plaintiff. The lower appellate court in its
judgment and decree dated 25.02.2005 passed in A.S.No.183 of 2004
though holding that DW3 and DW4 were borne to the Appellant/plaintiff
has reversed the findings of the trial court by holding that the daughters
namely DW3 and DW4 are alone entitled to receive the retirement benefits
of late P.Kasi excluding the Appellant/plaintiff. The lower appellate court
has however, accepted the findings of the trial court that the first
respondent/first defendant is not the legally wedded wife of the deceased
P.Kasi.
8. The lower appellate court reversed the findings of the trial court
only based on Ex.P10 dated 18.02.1998 which is a no objection letter given
by the daughters of the Appellant/plaintiff namely DW3 and DW4
authorising the first respondent/first defendant to receive the benefits from
the second and third respondents/second and third defendants. The lower
https://www.mhc.tn.gov.in/judis/
S.A. No.1315 of 2007
appellate court has also given a finding as seen from the impugned
judgement that it is no doubt true that the Appellant/plaintiff is the legally
wedded wife of the deceased Kasi and she has been living separately.
9. Aggrieved by the findings of the lower appellate court and
aggrieved by the Judgment and decree passed by the lower appellate court
in A.S.No.183 of 2004, this second appeal has been filed by the
Appellant/plaintiff.
10. This Court admits the second appeal on the following substantial
questions of law:
“1.Whether the daughters or the sons can be held as
they are entitle to succeed the estate or the service benefits
superceeding the right of mother while she alive?
2.Whether it is proper to hold that the daughters or
the sons are entitle to succeed the estate or the service
benefits even though concern court came to the conclusion
that no divorce took place between husband and wife?
3. Having observed that the plaintiff not get
divorced with her husband and the defendant not legally
https://www.mhc.tn.gov.in/judis/
S.A. No.1315 of 2007
wedded wife but failed to give relief of declaration as per
findings whether it is proper to omit to grant declaration?”
11. Heard Mr.V.Chandrakanthan, learned counsel for the Appellant
and Mr.C.V.Ramachandramoorthy, learned standing counsel for the second
and third respondents. Despite service of notice on the first respondent and
her name having been printed in the cause list today, there is no
representation on her side.
12. Learned counsel for the Appellant would submit that though the
Appellant/plaintiff has been recognised as a legal wedded wife of the
deceased P.Kasi, the lower appellate court has erred in giving a finding that
she is not entitled for the retirement benefits of late P.Kasi and that, only her
daughters who have been examined as DW3 and DW4 before the trial cout
are alone entitled for retirement benefits based on the no objection letter
dated 18.02.1998 which was marked as Ex.B10 before the trial court. He
would submit that as a legally wedded wife which remains undisputed
before the courts below, the lower appellate court ought not to have
https://www.mhc.tn.gov.in/judis/
S.A. No.1315 of 2007
excluded her from claiming right over the retirement benefits of Kasi, her
late husband who was employed with the second and third respondents.
13. The learned counsel for the Appellant drew the attention of this
Court to the Division Bench Judgement of Andhra Pradesh High Court
dated 13.11.2017 passed in the case of Union of India rep. by its Secretary,
Ministry of Consumer Affairs, Food & Public Distribution, New Delhi vs.
Lakshmi Suri reported in CDJ 2018 APHC 007 and would submit that in
identical circumstances, the Division Bench of Andhra Pradesh High Court
held that the second wife of the deceased Government Servant is not
entitled to family pension.
14. Mr.C.V.Ramachandramoorthy, learned standing counsel for the
second and third respondents would submit that the respondents 2 and 3 will
abide by any direction given by this Court as the dispute purely revolves
upon the Appellant/plaintiff and the first respondent/first defendant.
15. Admittedly, the Appellant/plaintiff is the wife of the deceased
https://www.mhc.tn.gov.in/judis/
S.A. No.1315 of 2007
Kasi who was an employee of the second and third respondents and died on
11.04.1997. Eventhough, in the written statement filed by the first
respondent/first defendant before the Trial court, she has stated that only
after the divorce between the Appellant/plaintiff and late P.Kasi, she
married him. No documentary evidence has been produced by the first
respondent/first defendant before the trial court to prove that the said P.Kasi
had legally divorced the Appellant/plaintiff.
16. The daughters of the appellant/plaintiff who were examined as
DW3 and DW4 who are living with the first respondent/first defendant have
themselves admitted that their mother is only the Appellant/plaintiff. The
trial court as well as the lower appellate court has concurrently given a
correct finding that the Appellant/plaintiff is the legally wedded wife of
P.Kasi. However, only based on Ex.B10 dated 18.02.1998 given by the
daughters namely DW3 and DW4 authorising the first respondent/first
defendant to receive benefits of late Kasi held that that first respondent/first
defendant is entitled to receive the retirement benefits of late P.Kasi from
the respondents 2 and 3.
https://www.mhc.tn.gov.in/judis/
S.A. No.1315 of 2007
17. As rightly contented by the learned counsel for the Appellant, the
said finding is an erroneous finding and it has been given in violation to the
settled law that a legally wedded wife is alone entitled for retirement
benefits and not a person who claims to be a wife though she may have been
living with the deceased at the time of his death along with his children born
out of the wedlock with the legally wedded wife i.e., Appellant/plaintiff.
The decision relied upon by the learned counsel for the Appellant/plaintiff
is squarely applicable to the facts of the instant case as it also involves
identical set of facts. By total non application of mind to the settled law that
a legally wedded wife is alone entitled along with her children to the
retirement benefits of the deceased employee, the lower appellate court
though observing that the Appellant/claimant is the legally wedded wife has
given an erroneous findings based on Ex.B10 no objection letter issued by
the daughters of the deceased namely DW3 and DW4.
18. For the foregoing reasons, the substantial questions of law
formulated by this Court supra are answered in favour of the
https://www.mhc.tn.gov.in/judis/
S.A. No.1315 of 2007
Appellant/plaintiff by holding that the Appellant/plaintiff along with her
children namely Thilagavathi and Umadevi are entitled for the retirement
benefits of late P.Kasi from the second and third respondents.
19. With the aforesaid observation, this second appeal is allowed by
setting aside the Judgment and Decree dated 25.02.2005 passed by the
lower appellate court namely District and Sessions Court / Fast Track Court
No.1, Chennai in A.S.No.183 of 2004. No costs. Consequently connected
miscellaneous petition is closed.
14.07.2021
nl
Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
To
1. The District and Sessions Court / Fast Track Court No.1, Chennai
2. The XVI Assistant City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis/
S.A. No.1315 of 2007
ABDUL QUDDHOSE, J.
nl
S.A. No.1315 of 2007
15.07.2021
https://www.mhc.tn.gov.in/judis/
