Madras High Court

Vijaya vs The General Manager on 2 August, 2024

Author: S.Srimathy

Bench: S.Srimathy

                                                                               A.S.(MD)No.192 of 2018


                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED : 02.08.2024

                                                    CORAM:

                                   THE HONOURABLE MRS.JUSTICE S.SRIMATHY

                                              A.S.(MD)No.192 of 2018

              1.Vijaya
              2.Latha
              3.Aparna                                                 ...Appellants

              (3rd appellant is declared as major and the
              guardianship of her grand mother 1st appellant
              Vijaya is discharged, vide Court order, dated
              23.07.2024, made in C.M.P.(MD)No.11201
              of 2018 in A.S.(MD)No.192 of 2018)

                                                       Vs.
              1.The General Manager,
                Indian Overseas Bank,
                Annasalai Head Office,
                Chennai.

              2.The Zonal Manager,
                Indian Overseas Bank,
                Zonal No.2,
                Cantonment,
                Tiruchirappalli.

              3.The Branch Manager,
                Indian Overseas Bank,
                Nachalur,
                Kulithalai Taluk.


              1/9

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                                                                                  A.S.(MD)No.192 of 2018


              4.Vasantha (Died)
              5.Vanitha
              6.Sumathi                                                     ...Respondents

              (4th respondent died and the respondents 5 and 6
              who are already on record are recorded as Legal
              Representatives of the deceased 4th respondent and
              represent the estate of the deceased R4, vide Court
              order, dated 09.02.2024, made in C.M.P.(MD)No.
              1180 of 2024 in A.S.(MD)No.192 of 2018)

              PRAYER: This Appeal Suit filed under Section 96 of C.P.C., to against the judgment
              and decree, dated 31.03.2003, made in O.S.No.70 of 2000 on the file of the
              Subordinate Judge's Court, Kulithalai.
                                    For Appellant      : Mr.S.Jayavel
                                    For R1 to R3       : Mr.N.Dilip Kumar
                                    R4                 : Died
                                    For R5 and R6      : No appearance
                                                         ****
                                                    JUDGMENT

The plaintiff has filed a suit as informa pauperies and for declaring that the

second plaintiff is entitled to “A” schedule properties with a consequential relief

directing the defendants 1 to 3 to pay “A” schedule property amount to the second

plaintiff. Also to declaring that the second plaintiff is entitled to get job on

compassionate ground in accordance to her educational qualification, with

consequential mandatory injunction directing the defendants to provide job to the 2nd

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plaintiff. Declaring the 3rd plaintiff is entitled to “B” schedule property and

consequentially directing defendants 1 to 3 to pay the “B” schedule property to the

3rd plaintiff. Finally, for declaring that the 1st plaintiff is entitled to “C” schedule

property and consequently directing the defendants 1 to 3 to pay “C” schedule

property.

2. The brief facts of the case are that the first plaintiff Vijaya is the wife of

Pakkirisamy. According to Vijaya the marriage with Pakkirisamy took place in the

year 1966 and they are blessed with three daughters namely, Latha (2nd plaintiff),

Vanitha (5th defendant) and Sumathi (6th defendant). The 3rd plaintiff is the daughter

of the 2nd plaintiff / Latha. In other words, the 3rd plaintiff is the granddaughter of the

1st plaintiff and the Late. Pakkirisamy. The defendants 1 to 3 are the officials of

Indian Overseas Bank. The 4th defendant is claiming to be the wife of Pakkirisamy

and has set up her claim against the terminal benefits of Late.Pakkirisamy. Hence,

the present suit was filed by the plaintiffs with the above stated prayer. The Trial

Court had dismissed the suit. The Trial Court has disbelieved the case of the plaintiff

Vijaya by relying on the maintenance petition filed by the 4th defendant Vasantha

wherein she had claimed maintenance against her husband Pakkirisamy. Further, the

Trial Court disbelieved the Will alleged to have executed by the Late.Pakkirisamy in

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favour of the 3rd plaintiff minor Aparna. Therefore, the entire suit came to be

dismissed. Aggrieved over the same, the present First Appeal is filed.

3. Pending first appeal, the 4th defendant Vasantha died. It is seen that the said

Vasantha has no children, which is evident from her own deposition before the Trial

Court that she is not having any children. In such circumstances, this Court is not

inclined to go into the issue who is the first wife and who is the second wife and their

rights. However this Court ought to analyze independently whether Vijaya is the wife

of Pakkirisamy.

4. The learned Counsel appearing for the plaintiffs submitted that the

Late.Pakkirisamy has entered the second plaintiff Latha as his nominee in his service

record. This fact has been admitted by the respondents 1 and 3 in their written

statement wherein it has been stated as under:

“5. This defendant submits that during 1983 Mr.Packirisamy nominated the 4 th defendant Vasantha as his nominee stating that she is his wife. But he had changed the nomination in 1992 by submitting a form dated 26.11.92 in favour of second plaintiff Latha, stating that she is his daughter.”

In fact, Vasantha has also admitted the same while deposing in her written statement

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wherein she has stated that that deceased Pakkirisamy had become alcoholic that too

after his illegitimate relationship with the first plaintiff. But her contention is that

under the influence of the alcohol and the first plaintiff, the deceased had nominated

second plaintiff Latha as his nominee. Even though there is an admission that it was

due to his addiction to alcohol, the fact remains that the second plaintiff was

nominated in the service records.

5. The Learned Counsel appearing for the plaintiffs submitted that even if the

admitted fact is taken into account, as on the date of filing the suit, the said Latha

was 28 years old. Hence, the said Latha would have born in the year 1972.

Therefore, it could infer that Vijaya is the wife who was married to Pakkirisamy prior

to 1975. After hearing the submissions, this Court is convinced that the first plaintiff

is entitled to the benefits of the Late.Pakkirisamy.

6. The plaintiffs are claiming that the entire suit properties would go to the

plaintiffs as per the Will. But this Court is of the considered opinion that the Will had

not been proved as it ought to be proved under law. Therefore, this Court is of the

considered opinion that the said Vijaya (1st plaintiff) and other 3 daughters namely

Latha (second plaintiff), Vanitha (5th defendant) and Sumathi (6th defendant) are the

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legal heirs of the Late. Pakkirisamy. The defendants 1 to 3 are directed to pay the

terminal benefits of the Late Pakkirisamy to the first plaintiff Vijaya.

7. The learned Counsel appearing for defendants 1 to 3 submitted since it is

old record, they are not able to trace the papers. The said contention cannot be

accepted. Since in the written statement, they have accepted that they were

disbursing the terminal benefits to the 1st plaintiff Vijaya. Also stated that normally,

the nominee would be entitled to the terminal benefits. When the matter is sub

judice, the Bank has stopped the disbursement of terminal benefits and also stated

that they would abide by the order of the Court. The said submission of the Bank is

extracted hereunder:

“10. This defendant submits that the deceased Packirisamy had cancelled the earlier nomination and nominated the second plaintiff as his nominee. As for as the Bank is concerned once the Terminal Benefits are disbursed in favour of the nominee, it is a good discharge of the Terminal Benefits. However, as the matter is subjudiced, the bank has stopped disbursement of the Terminal Benefits. This defendant further submits that this defendant would abide by any order as this Honourable Court deems fit.”

Therefore, even though Vijaya is not a nominee in the service records, this Court had

held that the first plaintiff is the wife of the deceased Pakkirisamy and the said Vijaya

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is entitled to the terminal benefits of the deceased Pakkirisamy. Therefore, this Court

is directing the defendants 1 to 3 to disburse the terminal benefits and other benefits

stated in the schedule of properties to the first plaintiff who is the wife of

Pakkirisamy.

8. However, it is made clear that the plaintiffs and the 5 th and 6th defendants are

not entitled to compassionate appointment, since compassionate appointment ought

to be considered within three years from the date of death of the deceased employee.

In the present case the employee Pakkirisamy died on 05.12.1998 and the said three

years lapsed on 05.12.2001 itself. Hence the prayer of companssionate appointment

is declined.

9. With the above said directions, the appeal suit is partly allowed as stated

supra. No costs.

02.08.2024 NCC : Yes / No Index : Yes / No Internet : Yes

Tmg

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1.Subordinate Judge's Court, Kulithalai.