Madras High Court
Kamala (Died) vs Chittammal on 10 September, 2024
2024:MHC:3460
SA.NO.387 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.09.2024
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
SA.No.387 of 2022
Kamala (Died)
Ambika
[1st Appellant died, 2nd appellant is brought on record as LR
of the deceased A1 vide Court Order
dt.12.02.2024 made in CMP.NO.3075/24]
... Appellant
Vs.
1.Chittammal
2.The Treasury Officer,
Coimbatore.
3.The Assistant Treasury Officer
Sub Treasury Office,
Oddanchatram
Dindigul District.
4.The Accountant General
Account General Office
NO.361, Anna Salai
Teynampet, Chennai.
5.The Manager
State Bank of Hyderabad
Coimbatore.
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SA.NO.387 of 2022
6.The District Collector,
Villupuram District,
Villupuram. ... Respondents
Prayer: Second Appeal filed under Section 100 of Code of Civil Procedure
praying to set aside the judgement and decree dated 09.03.2022 made in
A.S.No.11 of 2020 on the file of the Subordinate Judge, Gingee confirming the
Judgment and decree dated 10.11.2020 made in OS.NO.59 of 2014 on the file
of the Principal District Munsif, Gingee by allowing this appeal .
For Appellant : Mr.G.Prabaharan
For Respondents : Mr.P.Dinesh Kumar for R1
: Mr.V.Ramesh for RR2 & 3
: Mr.T.S.Selvarani for R4
: Mr.B.Raghuvelu Naidu for R5
JUDGEMENT
The first respondent is the 1st appellant/plaintiff in the suit filed for
seeking the relief of declaration that she is the legally wedded wife of late
Sriramalu and that she is entitled to get the family pension of Sriramalu
subsequent to his death and for consequential permanent injunction restraining
the defendants 1 to 5 from disbursing the same to the sixth defendant.
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SA.NO.387 of 2022
2. During the pendency of the second appeal, the 1st appellant died and
the daughter and legal heir of the deceased 1st appellant has been impleaded as
the 2nd appellant.
3. Heard Mr.G.Prabaharan, learned counsel for the appellant and
Mr.P.Dinesh Kumar, learned counsel for the 1st respondent and Mr. V.Ramesh,
learned counsel for the 2nd and 3rd respondents and Mr. T.S.Selvarani, learned
counsel for the 4th respondent and Mr.B.Raghuvelu Naidu, learned counsel for
the 5th respondent and perused the materials available on record.
4. The case of the plaintiff is that the marriage between the plaintiff and
the deceased Sriramalu had taken place in the year 1966 and they have been
living as husband and wife in plaintiff’s parent’s house at Chettipalayam
Village. During that time itself Sriramalu was working as a Teacher in a private
school and thereafter he got appointment in a Government Panchayat School.
The plaintiff and Sriramalu had one son by name Sivakumar and one daughter.
Sriramalu was lastly working as Headmaster at the Panchayat Union School,
Vanakkampatti Village. All the Government records and service records of
Sriramalu would show the plaintiff as his wife. In the proposal sent by
Sriramalu to Government also he had recognized the plaintiff as his wife. The
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SA.NO.387 of 2022
marriage between the Sriramalu and the plaintiff was not revoked till his death.
Subsequent to his retirement Sriramalu was getting his pension and during the
year 2004 he went out of the house but he did not return. The steps taken by the
plaintiff to know the whereabouts of Sriramalu did not evoke any positive
results. Then the plaintiff came to know that Sriramalu died and the sixth
defendant is receiving the family pension of Sriramalu by claiming herself as
his wife. Subsequently, the family pension proposal was forwarded to the first
defendant’s office and the same was disbursed through fourth defendant’s bank.
The sixth defendant never married Sriramalu and she is not entitled to receive
the family pension of Sriramalu. Hence, the plaintiff had sent a legal notice to
defendants 1, 2, 4 and 6 on 30.07.2013 and on receipt of the same, the first
defendant had advised the plaintiff to approach the third defendant for getting
the remedy.
5. However, the third defendant did not stop disbursing the family
pension to the sixth defendant even though she did not have any right. Hence
the plaintiff has filed the suit to declare her as the legally wedded wife of
Sriramalu and that she alone is entitled to receive the family pension of
deceased Sriramalu and consequently to declare the sixth defendant from
receiving the family pension.
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SA.NO.387 of 2022
6. The sixth defendant had contested the suit by denying that the plaintiff
is the legally wedded wife of Sriramalu. The plaintiff has married Sriramalu
and lived with him for a short time and she deserted him on 30.05.1967 when a
son was born to her. Despite various panchayats were held, the plaintiff was not
willing to live with Sriramalu and she was in contact with some other person.
Sriramalu and the plaintiff had dissolved their marriage in front of Panchayatars
and they also executed a deed of divorce and the plaintiff had obtained a sum of
Rs.2,000/- as full quit settlement from Sriramalu. The deceased Sriramalu had
appointed one Nagaraj as guardian for his son Sivakumar and executed a
settlement deed in his favour.
7. As Sriramalu was working as a Teacher and he found it difficult to
manage his family individually, he married the sixth defendant in the year 1984
at Mariamman Temple, Villupuram, in the presence of his relatives. Subsequent
to the marriage, the sixth defendant and Sriramalu were living at various places.
They have one daughter born on 19.10.1984. Sriramalu retired from service in
the year 1998 and even in his Service Register he had shown the sixth
defendant as his wife.
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SA.NO.387 of 2022
8. From the year 2002, the sixth defendant along with Sriramalu and their
daughter went to the house of her brother and settled there. The plaintiff has not
even seen whether Sriramalu was alive. Even when her son’s marriage was
held, the name of Sriramalu was not printed on the marriage invitation card.
The suit has been filed with some ulterior motive and hence it is liable to be
dismissed.
9. On hearing the rival contentions, the trial Court has framed the
following issues:
“ 1. Whether the marriage held between Sriramalu and plaintiff on 31.04.1966
is in accordance with law ?
2. Whether the plaintiff is the legal wife of Sriramalu ?
3. Whether Sriramalu had legally divorced the plaintiff ?
4. Whether the plaintiff is entitled to receive the pension of Sriramalu ?
5. Whether the relief sought by the plaintiff is available to her ?
6. Whether the injunctive relief sought by the plaintiff is available to her ?
7. To what relief the plaintiff is entitled to ?
10. During the course of trial on the side of the plaintiff two witness have
been examined as P.W.1 & P.W.2 and Exs.P1 to P9 were marked. On the side
of the sixth defendant, her daughter was examined as D.W.1 and Exs.D1 to D16
were marked.
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SA.NO.387 of 2022
11. At the conclusion of the trial, the suit has been decreed in favour of
the plaintiff. The first appeal preferred by the sixth defendant came to be
dismissed. Aggrieved over the same the sixth defendant has preferred the
present Second Appeal and it has been admitted on the following Substantial
Questions of Law:
“ 1. Whether the judgment and decree of the first appellate Court
are correct in decreeing the suit without any evidence produced by the
plaintiff in proof of marriage between the plaintiff and late Sriramalu ?
2. Whether the Courts below are right in holding that the nominee
cannot receive the pension unless the nominee is a legal representative
of the deceased ?
3. Is not the judgment of the first appellate Court vitiated for non-
consideration of all the points raised by the appellant and the judgment
was rendered only on one point ?”
12. Upon hearing both side learned counsels, this Court has re framed the
following Substantial Questions of Law as under:
“ (i) Whether it is legally correct for the Courts below to hold
that the nominees cannot receive pension unless the he/ she is the spouse
of the deceased?
(ii) Whether the judgment of the First Appellate Court is vitiated
due to the alleged non consideration of vital evidence produced by the
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SA.NO.387 of 2022
appellant with regard to the factum the status of marriage between the
1st respondent/plaintiff with the deceased Sriramalu?”
13. Mr.G.Prabaharan, learned counsel for the appellant submitted that the
Courts below did not appreciate Ex.A2 in order to arrive at a conclusion that
the marriage between the deceased Sriramalu and the 1st respondent has been
dissolved through a customary divorce. He further submitted that the service
records of the deceased Sriramalu would show that the 1st appellant has been
shown as the person nominated by the deceased to receive the terminal benefits.
Even though the government respondents have disbursed the terminal benefits
of the deceased Sriramalu in accordance with their registers, the Courts below
have found fault with the said action and that is a misconceived one.
14. Mr.P.Dinesh Kumar, learned counsel for the 1st respondent submitted
that the 1st appellant did not prove the dissolution of the marriage between the
1st respondent and the deceased Sriramalu and hence the Trial Court and the Ist
Appellate Court have rightly held that the 1st respondent /plaintiff is the legally
wedded wife of deceased Sriramalu.
15. The whole case rest on a single fact as to whether the 1st
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SA.NO.387 of 2022
respondent/plaintiff or the 1st appellant / 6th defendant is the legally wedded
wife of the deceased Sriramalu. Even according to the written statement
submitted by the 1st appellant / 6th defendant, the 1st respondent had married
Sriramalu and later deserted him on 30.05.1967 after a son was born to her. It is
a well settled proposition of law that admitted facts need not be proved. So the
appellants are not entitled to make out a question of law stating that the
judgement and decree of the Ist Appellate Court is not correct, as it has
accepted the fact about the marriage between the 1st respondent /plaintiff and
the deceased Sriramalu without proof.
16. Only because the 1st appellant had admitted the factum of the
marriage between the deceased Sriramalu and the 1st respondent/ plaintiff she
has taken up a plea that the marriage between the Sriramalu and the 1st
respondent/plaintiff has been dissolved subsequently through a customary
divorce. If the 1st appellant does not admit the marriage, then there is no
question of raising a plea of customary divorce as well. So the judgement and
decree of the 1st Appellate Court cannot be found fault on the ground that the
Courts have rendered a finding as to the fact of marriage between the 1 st
respondent/plaintiff and the deceased Sriramalu.
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SA.NO.387 of 2022
17. Even though there is no proof to show that the marriage between the
1st respondent/plaintiff and the deceased Sriramalu has been dissolved, the fact
remains that Sriramalu did not consider it appropriate to give the name of the 1st
respondent/plaintiff as nominee in his service records to receive his terminal
benefits or family pension.
18. As the deceased Sriramalu had shown the name of the 1st appellant,
the government respondents has proceeded to disburse the family pension to the
1st appellant. There cannot be any quarrel as to the receipt of the terminal
benefits because Sriramalu himself has received the terminal benefits
subsequent to his retirement and he was getting pension till the year 2004. Only
after 2004, he went out of the house and he did not return and later the parties
came to know that he died.
19. So far as the legality of making payment by the government
respondents to the nominees is concerned, Rule 48 of the Tamil Nadu Pension
Rules-1978 would state that the nomination can be made in favour of any
person who is a member of the family. If the government servant does not have
any family members, then the nomination can be made in favour of any other
person or body of individuals. In the event of any one of the nominees
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SA.NO.387 of 2022
predeceased the government servant or dies after the death of the government
servant before receiving the payment of terminal benefits, the rights conferred
on the nominees shall pass on to the persons who have been specified in the
nomination.
20. According to Rule 48 of the Tamil Nadu Pension Rules in the matter
of nomination, preference has to be given to the family members irrespective of
the fact that the nomination has been made in the name of one person or several
persons. Only in the absence of family members the nomination can be made in
the names of other persons. Hence, the nominee may or may not be the legal
heir of the deceased employee. Even if the nominee happens to be a legal heir
of the deceased, it cannot be presumed that the nominees shown by the
deceased alone is/are the only legal heir/heirs of the deceased. The nomination
is an arrangement made by the government servant during his life time in order
to enable the government to disburse his terminal benefits in the event of his
death without any delay or uncertainty.
21. The nominees cannot be considered as the legal heirs or the only
legal heir of the deceased and hence the entitlement of the legal heirs of
receiving the terminal benefits of the deceased is not lost and the nominee who
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SA.NO.387 of 2022
receives the terminal benefits from the government is answerable to the other
legal heirs in accordance with their share of entitlement. It is claimed by the 1st
respondent/ plaintiff that the 1st appellant had married Sriramalu during his
lifetime and hence, her marriage is illegal. He further contended that the 1 st
appellant cannot come under the class of family members and hence, the
nomination made by the deceased in favour of the 1st appellant is void.
22. The deceased Sriramalu considered the 1st appellant /6th respondent as
his wife and he had chosen to give her that status by showing her name in his
nomination forms. Even in that case the entitlement for family pension can be
claimed only if the nominated person happens to be wife of the deceased. Even
though the 1st respondent/ plaintiff claims herself to be a legally wedded wife
of the deceased Sriramalu and whose marriage has not been proved to have
dissolved till the death of Sriramalu, she was not in the life of the deceased till
his death. She had filed the litigation only at a later stage when she came to
know that the family pension was received by the deceased 1st appellant.
23. Even the 1st appellant could have believed that the marriage between
the 6th respondent /plaintiff and the deceased Sriramalu has been dissolved.
This is in view of the fact that the 1st respondent/plaintiff did not appear in their
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SA.NO.387 of 2022
life time till this litigation was filed. So, the government respondents cannot be
found fault for disbursing the family pension to the 1st appellant/6th respondent
who had been accepted and shown to the department by the Sriramalu himself
as his wife. Hence, the findings of the Courts below in this regard has to be
seen in the context of facts of this case, though in generality, the mere
nomination will not entitle the nominee to get the family pension unless he /she
happens to be the spouse of the deceased. Hence, the substantial question of
law No. 1 is thus answered.
24. As on today even the 1st appellant /6th respondent is not alive. Her
daughter who has been impleaded as 2nd appellant has also got married and she
is not a dependant on the deceased 1st appellant. Since the 1st respondent
/plaintiff is proved to be the wife of the deceased and her marriage was in
subsistence till the death of Sriramalu, it is right for the trial Court to decree the
suit and grant the relief of declaration with regard to the status of the 1 st
respondent /plaintiff as the legally wedded wife of the deceased Sriramalu and
consequential mandatory injunction directing the government respondents to
disburse the family pension to her. Thus the substantial question of law No. 2
is answered.
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SA.NO.387 of 2022
25. In the result, the Second Appeal is dismissed and the judgement and
decree dated 09.03.2022 made in A.S.No.11 of 2020 on the file of the
Subordinate Judge, Gingee is confirmed. The learned government respondents
are directed to disburse the family pension to the 1st respondent /plaintiff by
passing appropriate orders within a period of four weeks from the date of
receipt of copy of this order. No Costs.
10.09.2024
jrs
Speaking order / Non-speaking order
Index : Yes / No
Neutral Citation: Yes / No
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SA.NO.387 of 2022
To
1.The Treasury Officer,
Coimbatore.
2.The Assistant Treasury Officer
Sub Treasury Office,
Oddanchatram
Dindigul District.
3.The Accountant General
Account General Office
NO.361, Anna Salai
Teynampet, Chennai.
4.The Manager
State Bank of Hyderabad
Coimbatore.
5.The District Collector,
Villupuram District,
Villupuram.
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SA.NO.387 of 2022
R.N.MANJULA, J.
jrs
10.09.2024
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