Smt. Shaik Khateeja Begum Alias ... vs Smt. Mohammed Masthan Bee,
2023 Latest Caselaw 2942 Tel

        THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

                   SECOND APPEAL No.384 of 2005

JUDGMENT:

This Second Appeal is filed, under Section 100 of

C.P.C. read with 48 of the A.P. Agency Rules, 1924, against

the judgment and decree of the Agent to Government at

Khammam District, dated 28.01.2005, passed in A.S.No.3 of

2000, whereunder the learned Agent to Government

dismissed the said appeal by confirming the judgment and

decree, dated 04.05.1999, passed in O.S.No.145 of 1998 on the

file of the Special Assistant Agent, Mobile Court,

Bhadrachalam.

2. Appellant is the 1st defendant, respondent Nos. 4 and 5

herein are defendants 2 and 3 and respondent Nos.1 to 3

herein are plaintiffs in the suit. For the sake of convenience,

the parties would be referred to as they were arrayed in the

suit.

PSS, J S.A.No.384 of 2005

3. Necessary facts for disposal of this second appeal are

as follows:

O.S.No.145 of 1998 was filed to declare that the

plaintiffs 1 to 3 and defendants 2 and 3 are the surviving

legal representatives of late Mohammed Jaleel Ahmed. It is

stated that the plaintiffs as well as defendants 2 and 3 are the

dependents and legal heirs/legal representatives of the

deceased Mohammed Jaleel Ahmed, who died on 23.04.1998

while working as Hindi Pandit in Z.P.High School,

Nellipaka village. Plaintiff No.1 is the wife of the deceased

and plaintiff Nos.2 and 3 are children of the deceased

through plaintiff No.1. Defendant No.1 is the divorced first

wife of the deceased and defendants 2 and 3 are children of

the deceased through defendant No.1. It is further stated

that the marriage between the deceased Md.Jaleel Ahmed

and defendant No.1 (Md.Khateeja Begum @ Shaik Khateeja

Begum) was dissolved, as defendant No.1 has given 'Khula' PSS, J S.A.No.384 of 2005

(divorce) to the deceased and that she has executed a

'Khulanama' (deed of divorce) dated 18.11.1980 and since

then she has been residing separately. Thereafter, the

deceased married plaintiff No.1 as his second wife in the

year 1981 and out of their wedlock, she gave birth to

plaintiffs 2 and 3. Subsequently, defendant No.1 filed

M.C.No.30 of 1992 against the deceased Md.Jaleel Ahmed for

maintenance and the same was dismissed by the Judicial

Magistrate of First Class, Khammam, by order dated

28.09.1993, upholding the 'Khulanama' executed by

defendant No.1. After the death of the deceased, when the

plaintiffs and defendants 2 and 3 filed an application for

death benefits of the deceased before the Educational

Authorities, defendant No.1 filed an objection petition

claiming death benefits of the deceased, as a divorcee.

Hence, the plaintiffs filed the suit.

4. When summons were sent to the defendants to appear

before the trial Court on 22.01.1999, defendants 2 and 3 PSS, J S.A.No.384 of 2005

refused to receive the same. Summons sent to defendant

No.1 returned unserved. Defendants 2 and 3 remained ex

parte. Thereafter, when summons were sent to defendant

No.1 through special process server at the costs of the

plaintiffs, defendant No.1 refused to receive the same and as

such, he was also set ex parte.

5. After considering the entire material available on

record including the documents filed by the plaintiffs, the

trial Court decreed the suit declaring that plaintiffs 1 to 3 and

defendants 2 and 3 are Class-I legal heirs/representatives of

the deceased Md. Jaleel Ahmed and that they alone are

entitled for death benefits or emoluments of the deceased.

6. Aggrieved by the aforesaid judgment of the trail Court,

defendant No.1 preferred an appeal being A.S.No.3 of 2000

and the same was dismissed by the Agent to Government,

Khammam, holding that since defendant No.1 voluntarily

gave 'Khulanama' to the deceased, she is not entitled to PSS, J S.A.No.384 of 2005

claim any of the death emoluments and that the deceased

Md. Jaleel Ahmed need not obtain permission from the

Government for performing second marriage though he was

in Government service. Aggrieved by the said judgment,

defendant No.1 preferred this second appeal with the

following substantial questions of law:

(a) Whether the Courts below are justified in holding that the appellant is a divorcee, on the basis of findings made in proceedings before the criminal court without their being any independent enquiry with regard to dispute, whether there is divorce or not and that whether such finding by the criminal court binds the civil proceedings.

(b) Whether the courts below are justified in holding against the appellant on merits without providing any opportunity to put forth her pleadings, evidence either oral or documentary.

(c) Whether the courts below are justified in holding that the appellant is not entitle to get the benefits in the event of death of her husband, on the sole ground that the appellant is a divorcee, ignoring the settled principle that the even divorcee is also entitle to get share in the estate of deceased towards her maintenance and for her survival.

PSS, J S.A.No.384 of 2005

7. Heard learned Counsel appearing on either side and

perused the entire material available on record.

8. The point that arises for consideration is whether the

Courts below appreciated the evidence on record properly or

not?

9. There is no dispute regarding the fact that the deceased

Md. Jaleel Ahmed died on 23.04.1998 while he was in

Government service. Initially, the deceased Md. Jaleel

Ahmed married defendant No.1 and out of the wedlock,

they were blessed with defendants 2 and 3. But, defendant

No.1 voluntarily gave 'Khulanama' to the deceased Md.

Jaleel Ahmed and thereafter the deceased married plaintiff

No.1 as his second wife in the year 1981 and out of the

wedlock, they were blessed with plaintiffs 2 and 3. After the

death of the deceased, when plaintiffs 1 to 3 and defendants

2 and 3 filed an application for death benefits of the

deceased, defendant No.1 filed an objection petition stating PSS, J S.A.No.384 of 2005

that though she is a divorcee, she is also entitled for death

benefits of the deceased along with them. Both the Courts

below concurrently held that defendant No.1 is not entitled

for the death emoluments or benefits of her deceased

husband as she has voluntarily obtained 'Khulanama' from

her deceased husband. Plaintiff No.1 ought to have called

for the Service Register of the deceased Md.Jaleel Ahmed to

know whose name was mentioned as a nominee in his

Service Register. If at all defendant No.1 divorced the

deceased, the deceased ought to have altered and mentioned

the name of the 1st plaintiff in his Service Register as his

nominee for his benefits, if any. However, both the parties

have not called for the Service Register of the deceased for

the reasons best known to them. Therefore, it is for the

Court to dispose of the matter basing on the evidence

available on record.

10. Both the Courts below held that as defendant No.1

voluntarily obtained 'Khulanama' from the deceased, she PSS, J S.A.No.384 of 2005

being a divorcee is not entitled for the death emoluments or

benefits of her deceased husband. Learned Counsel for the

appellant/defendant No.1 argued that the deceased, who

was a Government employee, had to obtain permission from

the Government to go for second marriage and as he failed

to do so, plaintiff No.1 is not entitled for any death benefits.

As per Revised Pension Rules, 1980, family pension is not

admissible to the second wife as marrying another wife,

(when one wife is living) without obtaining the approval of

Government, is contrary to Rule 25 of A.P. Civil Services

(Conduct) Rules, 1964 vide Circular Memo No.11027-

B/26/Pen.I/87, Fin.&Plg.(FW:Pen.I) Department, dated

20.08.1991. There is no document on record to show whether

the deceased obtained any permission from the Government

before performing second marriage. No doubt, a Muslim

man can marry four wives at a time. But, as per the service

rules, as the deceased was a Government employee, he has

to obtain permission from the Government before PSS, J S.A.No.384 of 2005

performing second marriage. Plaintiff No.1 has not filed any

document to show that the deceased obtained permission

from the Government before performing marriage with her

and as such she cannot be identified as a legally wedded

wife of the deceased and she is not entitled for the death

benefits, if any. As already pointed out that defendant No.1

voluntarily gave 'Khulanama' to the deceased, she is also not

entitled for the death emoluments or benefits. However,

children of plaintiff No.1 and defendant No.1 are entitled for

the death benefits of the deceased.

11. Accordingly, the Second Appeal is disposed of. The

judgment of the appellate Court dated 28.01.2005 confirming

the judgment of the trial Court dated 04.05.1999 is modified

holding that both plaintiff No.1 and defendant No.1 are not

entitled for death benefits or emoluments of the deceased

Mohammed Jaleel Ahmed. But, the children of the deceased

Md. Jaleel Ahmed i.e., plaintiffs 2 and 3 and defendants 2 PSS, J S.A.No.384 of 2005

and 3 are equally entitled for the death benefits of their

deceased father. There shall be no order as to costs.

Miscellaneous petitions, if any, pending shall stand closed.

________________________ JUSTICE P.SREE SUDHA

06.10.2023 Gsn