Manjula vs The Municipal Corporation And 5 ...
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     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

          Civil Miscellaneous Appeal No.394 OF 2011

JUDGMENT:

Aggrieved by the order dated 29.12.2010 in O.P.No.1381

of 2006 (hereinafter will be referred as impugned order) passed

by the learned II Additional Chief Judge, City Civil Court,

Hyderabad, the respondent No.2 has filed the present Civil

Miscellaneous Appeal to set aside the impugned order.

2. For the sake of convenience, hereinafter, the parties will

be referred as per their array before the learned trial Court.

3. The brief facts of the case are that the petitioners have

filed an application under Section 372 of the Indian Succession

Act for issuance of succession certificate in respect of death

benefits to a tune of Rs.1,80,000/- payable on account of the

death of Sri K.Padmarao (hereinafter will be referred as

'deceased') by the office of the respondent No.1 i.e., The

Commissioner, Municipal Corporation of Hyderabad,

Hyderabad. In the said application, it was alleged as follows:

a) The first petitioner is the legally wedded wife of deceased

by name Sri K. Padma Rao, who died on 19.02.2005 leaving the

petitioners as his surviving legal heirs. The deceased was the 2 MGP,J CMA_394_2011

son of petitioner Nos.3 and 4 and father of petitioner No.2. The

marriage of the petitioner No.1 was performed with the deceased

on 19.02.1995 at Golden Function Hall, Kanchanbagh,

Santoshnagar, Hyderabad and out of their wedlock, petitioner

No.1 gave birth to petitioner No.2 on 18.10.1998. During the

life time of deceased, he worked as Kamatee in the office of the

respondent No.1.

b) After his death, the petitioner No.1 approached the office

of the respondent No.1 claiming the death benefits of late

Padmarao but she was informed by the officials that the name

of petitioner No.1 was not mentioned as the wife of deceased in

the service records of deceased. When the petitioner No.1

approached the Mandal Revenue officer, Saroornagar Mandal,

she came to know that respondent No.2 made similar

application for issuance of legal heir certificate claiming her as

the legally wedded wife of the deceased.

c) On 27.03.2006, the petitioner No.1 got issued a legal

notice to the Mandal Revenue Officer, Saroornagar denying the

claim of the respondent No.2 with a request for issuance of legal

heir certificate in favour of the petitioner No.1.

                                  3                              MGP,J
                                                         CMA_394_2011




d)      On enquiry, for the first time, the petitioner No.1 came to

know through petitioner Nos.3 and 4 as well as some other

sources that the deceased was having illicit intimacy with

respondent No.2 and used to stay with her in the absence of the

petitioner No.1. Except the said illegal relationship, there is no

valid relationship between the deceased and the respondent

No.2. The allegation of the respondent No.2 that she is the

legally wedded wife of the deceased is totally incorrect and

baseless. Therefore, the petitioners have filed the present

application for succession certificate in respect of Rs.1,80,000/-

, which is payable as pension and gratuity of the deceased.

4. The respondent No.1 filed counter, the brief averments of

which are as follows:

The respondent No.1 admitted that the deceased was the

employee of MCH working as Kamati in Transport Section and

the deceased died on 19.02.2005 while he was in service. After

the death of the deceased, respondent No.2 claiming herself as

wife of deceased, submitted pension papers, legal heir

certificate, death certificate and for pensionary benefits of her

deceased husband. As per the personal file of the deceased, he

already nominated Respondent No.2 as his wife as a nominee

and also submitted a joint photograph for the office record. As 4 MGP,J CMA_394_2011

matter stood thus, the petitioner No.1 made representation

claiming herself as the legal heir of deceased and requested to

grant all pensionary benefits in her favour. Except giving

representation, she has not submitted any paper in support of

her claim. The petitioner No.1 got issued a legal notice dated

01.07.2005 through her advocate reiterating her claim without

any documentary evidence. The MCH had addressed a letter

dated 07.10.2005 to the petitioner No.1 directing her to submit

documents in support of her claim but the registered letter

addressed to the petitioner No.1 was returned with an

endorsement ' no such addressee'. Since the petitioner No.1 did

not submit any document in support of her claim, they

processed the application submitted by the respondent No.2 for

family pension and compassionate employment. The

respondent No.1 further submitted that as per their record, the

respondent No.2 has complied with all formalities required for

granting family pension. However, the same could not be

sanctioned due to filing of the present case.

5. The respondent No.5 filed counter, the brief averments of

which are as follows:

The respondent No.2 denied the allegation in the petition,

however, admitted that petitioner Nos.3 and 4 are the parents of 5 MGP,J CMA_394_2011

the deceased. Respondent No.2 submitted that the deceased

married her on 11.03.1999 at Ibrahimpatnam in R.R. District as

per Hindu customs and traditions. The said marriage was

arranged one and the parents, sisters and relatives of the

deceased also attended the said marriage. After the said

marriage, the deceased put up respondent No.2 at her in laws

house, wherein she stayed with them till the death of deceased.

The deceased mentioned the name of respondent No.2 as his

nominee and her name was also mentioned in the voters list at

Sl.No.6331, wherein it is shown the name of her husband as

Padma Rao. The respondent No.2 was also issued ration card,

which shows the deceased as her husband. On the unexpected

death of deceased, respondent No.2 has applied for

compassionate appointment as she studied VII class as per the

requirement of the Department and she also submitted relevant

documents i.e., death certificate, legal heir certificate, election

card, transfer certificate, and community certificate etc to the

respondent No.1. While the respondent No.1 was about to give

order in favour of respondent No.2, the petitioner No.1 came up

with the petition. The petitioner No.1 is a stranger to

respondent No.2 and petitioner No.1 is no way connected to the

family of the deceased but all of a sudden the petitioner No.1 6 MGP,J CMA_394_2011

appeared and claiming benefits of the deceased. Hence, the

respondent No.2 prayed to dismiss the petition.

6. Before the trial Court, PWs 1 to 3 were examined and

Exs.A1 to A9 were marked on behalf of the petitioners and

whereas on behalf of respondents, RWs 1 to 3 were examined

and Exs. B1 to B27 were marked. The learned II Additional

Chief Judge, City Civil Court, Hyderabad after considering the

evidence on record, both oral and documentary, has allowed the

petition granting succession certificate in favour of petitioner

Nos.1, 2 and 4 only.

7. Dissatisfied by the impugned order, the respondent No.2

has filed the present Civil Miscellaneous Appeal to set aside the

impugned order.

8. Heard both sides and perused the record.

9. The first and foremost contention raised by the learned

counsel for the respondent No.2 is that petitioner No.1 has not

produced any documentary evidence in support of her claim as

legal heir of the deceased and whereas the deceased has

nominated the respondent No.2 as his nominee to receive the

pensionary benefits from respondent No.1, however, trial Court

has allowed the petition without considering the oral evidence in 7 MGP,J CMA_394_2011

the form of RW1 and documentary evidence under Exs.B21 to

B27 on behalf of respondent No.2.

10. The respondent No.2 relied upon Exs.B1 to B11

photographs and Ex.B26 wedding card to substantiate her

marriage with the deceased. Exs.B21 to B24 are the Photostat

copy of legal heir certificate, election ID card, ration card,

Arogya Sree Health card of respondent No.2, wherein the

deceased was shown as husband of respondent No.2. Exs.B12,

B20 and B25 are the applications submitted by respondent No.2

seeking compassionate appointment and family pension.

Exs.B17 to B19 are personal data of deceased, details of family

members and death certificate of deceased. Exs.B13 to B16 are

correspondence between respondent No.2 and petitioner No.1.

11. On the other hand, the petitioner No.1 examined herself

as PW1 apart from examining her mother-in-law and the priest,

who performed the marriage of petitioner No.1 with her

husband. Exs.A1 to A3 are the service certificate, death

certificate and birth certificate of deceased. Ex.A4 is the

application submitted by petitioner No.1 to respondent No.1

seeking pensionary benefits of deceased. Exs.A5 and A6 are the

legal notices. Ex.A7 is the photographs pertaining to the

marriage of deceased with petitioner No.1. It is the contention 8 MGP,J CMA_394_2011

of learned counsel for the respondent No.2 that petitioner No.1

is totally a stranger and she is no way connected to the family of

the deceased. However, PW2, who is the mother of the

deceased, deposed that petitioner No.1 is the legally wedded wife

of the deceased and that the deceased had illicit intimacy with

respondent No.2. Even PW3 the priest, who performed the

marriage of the deceased with petitioner No.1 also supported the

evidence of PWs 1 and 2. Exs.A8 and A9 are copy of the petition

and order in O.P.No.190 of 1998 on the file of learned II

Additional Senior Civil Judge, R.R.District, which discloses that

the deceased filed petition seeking divorce from petitioner No.1,

however, the said petition was dismissed on 08.09.2000. Thus,

it is evident from the record that though respondent No.2 placed

evidence with regard to her marriage with deceased, her

marriage took place during the subsistence of marriage between

deceased and his first wife i.e., petitioner No.1. A second

marriage contracted by a Hindu during the subsistence of first

marriage is, therefore, null and void as per section 11 read with

clause (i) of Section 5 of Hindu Marriage Act. Exs.A8 and A9 are

themselves self evident to show that a relationship of wife and

husband exists between petitioner No.1 and deceased. Thus,

the contention of the learned counsel for the respondent No.2

that the petition has not placed any documentary evidence in 9 MGP,J CMA_394_2011

support of her claim as legal heir of the deceased, is

unsustainable.

12. Learned counsel for the respondent No.2 relied upon a

decision of Single Judge of this Court in Arpula Ganesh v. The

State of Telangana and others 1, wherein it was held children

born out of second marriage cannot be treated as illegitimate

children and the respondents therein were directed to consider

the case of the petitioner therein for compassionate

appointment by duly taking into consideration the law laid

down by the Apex Court in Union of India v. V.R. Tripathi 2.

But in the case on hand, it is not the children of second wife but

the second wife has approached the Court seeking

compassionate appointment, more particularly, when the first

wife and her son are surviving. Therefore, the principle laid

down in the above said decision is not applicable to the facts of

the case on hand.

13. Learned counsel for the petitioners relied upon a decision

in Rameshwari Devi v. State of Bihar and others 3, wherein

the Apex Court held that minor children of second marriage were

2 2019 (14) SCC 646 3 (2000) 2 Supreme Court Cases 431 10 MGP,J CMA_394_2011

entitled to family pension along with first wife but not the second

widow.

14. Learned counsel for the petitioners further relied upon a

decision In Raj Kumari and another v. Krishna and others 4,

wherein, the Apex Court held as follows:

"Normally, pension is given to the legally wedded wife of a deceased employee. By no stretch of imagination can one say that the plaintiff Smt. Krishna was the legally wedded wife of late Shri Atam Prakash, especially when he had a wife, who was alive when he married another woman in Arya Samaj temple, as submitted by the learned counsel appearing for the appellants. We are, therefore, of the view that the High Court should not have modified the findings arrived at and the decree passed by the trial Court in relation to the pensionary benefits. The pensionary benefits shall be given by the employer of late Shri Atam Prakash to the present appellants in accordance with the rules and regulations governing service conditions of late Shri Atam Prakash."

15. The above preposition of law was reiterated by the High

Court of Chattisgarh in Smt.Nanbai Rathore v. Smt. Meena

Bai 5.

16. The question to be answered at this juncture is whether

second wife can be considered as a family member when the

first wife is surviving and if so, whether nomination of second

4 (2015) 14 Supreme Court Cases 511 5 Second Appeal No.373 of 2018 decided on 14.10.2019 11 MGP,J CMA_394_2011

wife to receive retirement benefits of the deceased husband can

be considered as a valid nomination. In general a nominee may

preferably be a family member, as the nomination form requires

the nominator to describe his/her relationship with the

nominee. Also, considering the fact that the legal heirs of a

person are family members of such person, it only helps further,

if the nominee as well is a family member. If a member has a

family at the time of making a nomination, it must be in favour

of one or more members of his family for EPF/EDLI schemes,

and any nomination made by such member in favour of a

person, who is not a member of his family, is void. As per the

rules of Employees Provident Fund Scheme, if the member is a

married Person, he can nominate his wife, children (whether

married or unmarried), dependent parents or deceased son's

widow and children.

17. In the case on hand, the respondent No.2 was nominated

by K.Padmarao to receive his retirement benefits, when his first

wife i.e., petitioner No.1 is still surviving. As stated supra,

K.Padma Rao filed petition seeking divorce from petitioner No.1

vide Ex.A8, however, the said petition was dismissed vide Ex.A9.

Thus, it is clear that the relationship between petitioner No.1

and K. Padma Rao as wife and husband is subsisting until the 12 MGP,J CMA_394_2011

demise of K. Padma Rao. In such circumstances, the

nomination made by K. Padma Rao in favour of respondent No.2

becomes void, more particularly when petitioner No.1, who is

the wife of K. Padam Rao is surviving. Nominating respondent

No.2 to receive the retirement benefits by ignoring the interests

of petitioners is unjustified. If the government employee

contracted second marriage with permission of the competent

authority, such wife would have legal status for all purposes for

receiving family pension along with the first wife and the

children of the first wife, in terms of sub-rule (6) of Rule 50 of

the Andhra Pradesh Revised Pension Rules, 1980. It is not even

the case of respondent No.2 that K. Padma Rao has obtained

permission of the competent authority to claim the legal status

of legally wedded wife on par with petitioner No.1. Non -

disclosure of second marriage during the subsistence of first

marriage is considered as misconduct and the government

employee is liable for dismissal from the service. In Smt.

Batasiya Maravi v. The State of Madhya Pradesh through

the Secretary, Home Department, Bhopal and others 6,

wherein it was held by High Court of Madhya Pradesh that

petitioner's contention that she being second wife is entitled to

13 MGP,J CMA_394_2011

family pension is not made out because contracting second

marriage itself is a misconduct and that irrespective of the

personal laws, no government servant is entitled to contract a

second marriage without first obtaining the permission of the

government. In Khursheed Ahmad Khan Vs. State of U.P.

and others 7, the Apex Court held as follows:

"9. As regard the charge of misconduct in question, it is patent that there is no material on record to show that the appellant divorced his first wife before the second marriage or he informed the Government about contracting the second marriage. In absence thereof the second marriage is a misconduct under the Conduct Rules. The defence of the appellant that his first marriage had come to an end has been disbelieved by the disciplinary authority and the High Court. Learned counsel for the State has pointed out that not only the appellant admitted that his first marriage was continuing when he performed second marriage, first wife of the appellant herself appeared as a witness during the inquiry proceedings and stated that the first marriage was never dissolved. On that basis, the High Court was justified in holding that the finding of proved misconduct did not call for any interference. Learned counsel for the State also submits that the validity of the impugned Conduct Rule is not open to question on the ground that it violated Article 25 of the Constitution in view of the law laid down by this court in Sarla Mudgal vs. Union of India[1]. He further submitted that the High Court was justified in holding that the punishment of removal could not be held to be shockingly disproportionate to the charge and did not call for any interference."

18. In view of the principle laid down in the above decisions

since non-disclosure of second marriage during the subsistence

of first marriage is considered as misconduct and for such

misconduct the government employee is liable for dismissal

from the service and as performing second marriage during the

subsistence of first marriage is an offence under the provisions

AIR 2015 SC 1429 14 MGP,J CMA_394_2011

of Indian Penal Code, certainly the act of deceased K. Padma

Rao, in nominating the second wife to receive retirement

benefits by ignoring the interests of his own family members

including parents, first wife and his son through first wife is not

at all justifiable.

19. It is pertinent to note that petitioner No.2 born out of the

wedlock between K. Padma Rao (deceased) and petitioner No.1.

On the other hand respondent No.2 was not blessed with any

children through K. Padma Rao. Thus, viewed from any angle,

if the succession certificate is not issued in favour of petitioner

Nos.1 and 2, any amount of hardship is going to be faced by the

petitioners.

20. In view of the above discussion, this Court is of the

considered opinion that the trial Court has not committed any

illegality or irregularity in passing the impugned order. The trial

Court after considering all the aspects has rightly granted

succession certificate in favour of petitioner Nos.1, 2 and 4.

Thus, this Court is not inclined to interfere with the findings of

the learned trial Court while passing the impugned order.

Therefore, this Civil Miscellaneous Appeal is devoid of merits

and liable to be dismissed.

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                                                       CMA_394_2011

21. Accordingly, the Civil Miscellaneous Appeal is dismissed

confirming the order dated 29.12.2010 in O.P.No.1381 of 2006

(hereinafter will be referred as impugned order) passed by the

learned II Additional Chief Judge, City Civil Court, Hyderabad.

There shall be no order as to costs.

Pending Miscellaneous applications, if any, shall stand

closed.

                                     ______________________________
                                     JUSTICE M.G.PRIYADARSINI
Date:     .09.2023
AS