Madras High Court
Ravi vs Apporvammal @ Pattu on 14 November, 2025
S.A.No.972 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 20.08.2025
Pronounced on 14.11.2025
CORAM
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
S.A.No.972 of 2019
Violet (died)
1. Ravi
2. Prema
3. K. Vasanthi
4. Pappy ...Appellants
Vs.
1. Apporvammal @ Pattu
2. The Chief Security Commissioner,
Southern Railway
Chennai
3. The Senior Divisional Security Commissioner,
Southern Railway,
Chennai ...Respondents
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S.A.No.972 of 2019
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
judgment and decree dated 22.01.2019 passed in A.S. No.45 of 2017, on
the file of the Subordinate Judge, Tirupattur, Vellore District,
confirming the Judgment and decree dated 20.09.2013 passed in
O.S.No.221 of 2007, on the file of the Principal District Munsif,
Tirupattur.
For Appellants : Ms. Elizabeth Ravi
For Respondents : Mr.V.V. Sathya for R1
Mr. M. Vijay Anand
Additional Standing Counsel
for Railways for R2 and R3.
JUDGMENT
In this Second Appeal, challenge is made to the judgment and
decree dated 22.01.2019 passed in A.S. No.45 of 2017, on the file of the
Subordinate Judge, Tirupattur, Vellore District, confirming the Judgment
and decree dated 20.09.2013 passed in O.S.No.221 of 2007, on the file of
the Principal District Munsif, Tirupattur.
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2. For the sake of convenience, the parties are referred to as per
their ranking in the trial court.
3. The legal heirs of the 1st defendant are on appeal.
4. The case of the plaintiff is that, she is the wife of one Krishnan
and having married him in the month of September 1962, begotten two
children, by name, Mohan and Prema. The said Krishnan was working in
the defendants' 2 and 3 LOKE Work at Perambur. Since the said
Krishnan neglected the plaintiff and her children, she filed M.C.
No.17/1990 for maintenance and a sum of Rs.500/- was ordered as
maintenance. Despite the order, the said Krishnan failed to maintain the
plaintiff and therefore, she filed a suit in O.S. No.263/01 against her
husband Krishnan and against the present defendants 2 and 3 for
injunction restraining them from disbursing the retirement benefits to
Krishnan. Pending suit, the said Krishnan died on 30.08.2003 and hence,
the plaintiff not pressed the above suit. Thereafter, the plaintiff
demanded the defendants 2 and 3 to disburse the retirement and Family
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Pension to her. But the defendants 2 and 3 protracted the proceedings.
Hence, the plaintiff issued a legal notice dated 26.12.2006 to the
defendants 2 and 3. But the above defendants failed to disburse the
retirement benefits and family pension to the plaintiff. Hence, the
plaintiff was constrained to file the above suit for declaration that she is
the only legally wedded wife of Krishnan and also for permanent
injunction restraining the defendants 2 and 3 from disbursing the
pensionary benefits to the 1st defendant.
5. The claim of the plaintiff was resisted by the 1st defendant
stating that the plaintiff filed the Maintenance Petition against the said
Krishnan in which the said Krishnan filed a counter statement stating
that the plaintiff was leading an adulterous life with one Ekilarian and a
panchayat was held in which the said Krishnan agreed to pay a sum of
Rs.300/- as maintenance to the plaintiff. The said amount was sent
through Money Order. Thereafter, the plaintiff filed a suit in O.S.
No.263/2001 and the same was dismissed on 07.12.2006. Hence, the
present suit is barred by Res Judicata. The said Krishnan had divorced
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the plaintiff as per the prevailing customs in the year 1962 and thereafter,
he married the 1st defendant. In all his service records the 1st defendant's
name alone is found and therefore, the 1st defendant alone is the legally
wedded wife of Krishnan and so the plaintiff is not entitled to any
pensionary benefit of late Krishnan. Hence prayed for dismissal of the
suit.
6. The defendants 2 and 3 in their written statement has stated that
the said Krishnan was appointed as Rakshak on 18.10.1962 in the RPF.
He then retired from service as an Assistant Sub Inspector at LW/PER
after attaining superannuation on 31.10.2001 and he had received all his
settlement dues on 01.11.2001 itself. Hence the suit is infructuous.
Further the suit filed by the plaintiff in O.S. No.263/2001 for the same
remedy was dismissed on 07.12.2006. Based on the legal opinion by the
Deputy Chief Law Officer, the 1st defendant was sanctioned enhanced
Family Pension and other benefits from 31.08.2003 to 30.10.2008. As
per the service records, the said Krishnan has nominated the 1st defendant
as his wife. Hence, they have not sanctioned the Family Pension and
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other benefits during the pendency of the above suit. Only after
dismissal of the suit in O.S. No.263/2001 on 07.12.2006, they sanctioned
Family Pension lawfully after scrutinizing the relevant records submitted
by the 1st defendant. Hence, prayed for dismissal of the suit.
7. The trial court, vide its judgment and decree dated 20.09.2013,
decreed the suit in favour of the plaintiff, against which the 1st defendant
has preferred an appeal in A.S. No.45/2017 before the Subordinate
Court, Tirupattur, Vellore District. The first appellate court also
dismissed the appeal suit vide its judgment and decree dated 22.01.2019
confirming the judgment and decree passed by the trial court. During the
pendency of the first appeal, the 1st defendant died and her legal heirs
were impleaded. The present Second Appeal is preferred by the legal
heirs of the 1st defendant.
8. The Second Appeal has been admitted on the following
substantial question of law.
"Whether the courts below were right in holding that the
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suit is not barred under Article 58 of the Limitation Act"
9. The learned counsel for the appellants would submit that the suit
is hopelessly barred by limitation under Article 58 of the Limitation Act,
1963, since the cause of action arose well before 1971 when the status of
the plaintiff as wife of the deceased was in dispute and the present suit
was filed only in the year 2007. Hence it is barred by limitation under
Article 58 of the Limitation Act. He would further submit that the said
Krishnan died on 30.08.2003 during the pendency of the suit in O.S.
No.263/2001. While so, the plaintiff ought to have taken steps to
implead the legal representatives of the deceased Krishnan by amending
the plaint. Rather, she withdrew the suit by getting an order of dismissal
on 07.12.2006. The plaintiff ought to have filed the present suit within 3
years from 30.08.2003, the date of death of Krishnan, however, filed the
present suit only on 12.07.2007, which is hopelessly barred by limitation.
It is further submitted that the plaintiff failed to establish the factum of
marriage between herself and the deceased Krishnan when the same was
disputed by the respondents 2 and 3 themselves. While so, the courts
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below wrongly placed the onus of proof upon the deceased 1st defendant
regarding the customary divorce, where as, the onus of proof is only
upon the plaintiff herself and not upon the deceased 1st defendant. It is
further submitted that the order of maintenance passed in M.C.
No.17/1990 cannot be a proof of marriage since the order of maintenance
was passed in a summary procedure under Section 125 of the Code of
Criminal Procedure, 1973, and the same cannot be taken as a conclusive
proof binding upon the parties in a Civil proceedings. The first appellate
ought to have adverted to the provisions contained in Section 16 of the
Hindu Marriage Act, wherein the right of such illegitimate children born
out of the void marriage, separate properties and the courts below ought
to have held that the defendants are equally entitled to their share in the
estate of the deceased Krishnan. Hence prayed for setting aside the
judgment and decree passed by the courts below.
10. On the other hand, the learned counsel for the 1st
respondent/plaintiff submits that the factum of ordering of maintenance
to the plaintiff and the marriage between the plaintiff and late Krishnan
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was not dissolved by any competent court and hence it has to be
presumed that the plaintiff alone is the legally wedded wife of the
deceased Krishnan. Though the 1st defendant was shown as nominee in
the Service Registers of the said Krishnan, the 1st defendant is not the
legally wedded wife of Krishnan and therefore, she is not entitled for the
retirement benefits of late Krishnan. The courts below have rightly
appreciated the above facts which warrants any interference by this
Court. Hence, prayed for dismissal of the Second Appeal.
11. Heard on both sides. Records perused.
12. The above suit is filed by the plaintiff to declare her as the
legally wedded wife of late Krishnan and to restrain the defendants 2 and
3 from disbursing the retirement benefits of late Krishnan to the 1st
defendant in the above suit. The trial court and the first appellate court
have categorically held that since the marriage between the plaintiff and
late Krishnan was not dissolved by any competent court and also held
that the marriage between the plaintiff and late Krishnan was dissolved
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as per customs not proved. Hence, the courts below held that the plaintiff
being the legally wedded wife of deceased Krishnan is entitled to receive
the pension. On perusal of records it is seen that the 1st defendant has
admitted the marriage between deceased Krishnan and the plaintiff even
prior to the 1st defendant's marriage with Krishnan. She had only pleaded
that Krishnan had divorced the plaintiff as per customs, which was not
established by any tangible evidence. Though the said Krishnan had
nominated the 1st defendant to receive the Family Pension it will not be
binding on the plaintiff. In respect of Family Pension, the deceased
Krishnan had no right to nominate the 1st defendant, in violation of the
Pension Rules, as a person entitled to receive the pension and, any such
nomination made by him is invalid. Hence, the plaintiff being the legally
wedded wife of deceased Krishnan is entitled to receive the pension.
Moreover, the Family Pension Scheme is in the nature of a welfare
scheme. The courts below applying the principles laid down in the case
reported in 2012 (2) L.W. 486 has rightly concluded that the plaintiff is
entitled to receive the pension of deceased Krishnan. No perversity or
infirmity found in the said findings of the courts below.
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13. However, in this Second Appeal, the question of law
formulated is that the suit is barred under Article 58 of the Limitation
Act, 1963. According to the learned counsel for the appellant, when the
plaintiff seeks a decree for declaration that she is the lawfully wedded
wife of Krishnan, the suit ought to have been filed within a period of 3
years, from the date when the dispute relating to the marital status has
been raised, i.e. on the date when the plaintiff filed the suit in O.S.
No.263/2001, for permanent injunction against the defendants 2 and 3,
the date on which the right to sue accrues. However, such a plea was not
raised in the written statement before the trial court or in the appeal
memorandum before the lower appellate court. Generally, the issue of
limitation should not be raised for the first time in a Second Appeal if it
involves a mixed question of law and fact, as it can prejudice the other
party. However, courts are bound to dismiss a suit if it is filed after the
prescribed period, even if the plea of limitation is not raised by the
defendant, as per Section 3 of the Limitation Act, 1963. Under Section 3
of the Limitation Act, a court is obligated to dismiss a suit, appeal, or
application that is time barred, regardless of whether the plea was raised
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by the opponent. This means that a Court can raise the issue on its own
motion and dismiss the suit, even if the defendant never mentioned it in
their pleadings. But, the issue of limitation must be pure question of law.
Raising a mixed question of law and fact for the first time in a Second
Appeal can be unfair because it prevents the other party from having an
opportunity to present their arguments and evidence in the lower courts.
The Limitation Act, 1963, restricts the right of a litigant by prescribing a
time limit within which action must be initiated. Its object is to provide a
time or period, within which, the action has to be initiated. The object of
the Act is not to destroy the vested right available in law but to prevent
indefinite litigation and therefore, only prescribes a period for initiation
of the litigation. Generally, limitation is a mixed question of fact and law.
In cases, where the action is initiated after several years after the right to
sue accrued, without any pleadings to explain the reasons for delay or as
to when the fraud was discovered, the question of limitation is to be
treated as a question of law. Even in the absence of specific pleadings
regarding the limitation in the plaint or a plea of defence, there is a
bounden duty on every civil court to ascertain as to whether the lis has
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been initiated within the time prescribed under law, even if the parties to
the lis had not raised any objections. This right flows from the mandate
of Section 3 of the Limitation Act, 1963, but not in cases where facts
have to be pleaded and evidence have to be let in. In the present case,
the defendants have not raised the plea of limitation in their written
statement or in the memorandum of appeal. No doubt, a suit for
declaration of one's status as a legally wedded wife generally has a
limitation period of 3 years from when the right to sue first accrues, as
per Article 58 of the Limitation Act, 1963. The time when the right to
sue first accrues is the critical point in determining the start of any
limitation period. Therefore, in the present case, evidence is required as
to when the dispute relating to the marital status of the plaintiff was
raised. If Article 58 of the Limitation Act applies, the 3 year period
begins when the plaintiff first becomes aware of the circumstances or
challenge to her status that necessitates filing a suit. The right to sue first
accrues at the point the plaintiff's rights are clearly threatened or violated
and successive violations do not give rise to a fresh cause of action under
this Article in other types of declaration suits. In matrimonial matter,
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courts generally lean towards ensuring substantial justice prevails over
strict, technical considerations of the Limitation Act. Therefore,
substantial justice in such sensitive matters should prevail over technical
consideration of delay, especially if there is a recurring cause of action.
Accordingly, the substantial question of law is answered against the
appellant.
14. In the result,
i. The Second Appeal is dismissed. No costs.
ii. The judgment and decree dated 22.01.2019 passed in A.S. No.45
of 2017, on the file of the Subordinate Judge, Tirupattur, Vellore
District, confirming the Judgment and decree dated 20.09.2013
passed in O.S.No.221 of 2007, on the file of the Principal District
Munsif, Tirupattur, is upheld.
14.11.2025
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
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To
1. The Subordinate Judge, Tirupattur, Vellore District,
2. The Principal District Munsif, Tirupattur
3. The Chief Security Commissioner,
Southern Railway
Chennai
4. The Senior Divisional Security Commissioner,
Southern Railway,
Chennai
5. The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J
bga
Pre delivery Judgment in
14.11.2025
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