Janaki and another v. Kiliambal and others — 1992 DIGILAW 228 (MAD)

Judgment : Second Appeal No.1324 of 1989:This appeal has been filed by defendants 1 and 2, who claim to be the wife and son of one Narasinghan, who died on 26. 1984. He met with an accident on 26. 1984 and died on 26. 1984. He was employed as an Assistant (Agricultural Demonstration), in the Office of the Assistant Director (Agriculture), Seed Centre, Cuddalore. The suit has been filed by respondents 1 and 2 herein for a declaration that the plaintiffs and the eight defendant Poongothai are the only legal heirs of the deceased Narasinghan and they are entitled to receive the amounts due to the deceased by way of service benefits, provident fund and death-cum-retirement gratuity, pension, etc. The dispute, in short, is between the plaintiffs on the one hand and defendants 1 and 2 on the other. According to the plaintiffs, the first plaintiff was married to Narasinghan somewhere in June, 1946 and the second plaintiff was born to them. It is the case of the plaintiffs that the first defendant was having illicit intimacy with the deceased and he drove the first plaintiff away from the house after he came into contact with the first defendant. Per contra, the case of defendants 1 and 2 is that the plaintiffs are not the legal heirs of deceased Narasinghan and the first defendant got married to him in January, 1948 and she was the only legally wedded wife. It is the case of defendants 1 and 2 that the second defendant was one of the sons born to the first defendant and Narasinghan, and the other children were dead. It is also contended by them that deceased Narasinghan had nominated them to receive the service benefits and in view of the nomination the plaintiffs cannot claim any right to the same. 2. The trial court granted a decree in favour of the plaintiffs as prayed for by them and declared that the plaintiffs and the 8th defendant are the only legal heirs of the deceased Narasinghan. On appeal, the lower appellate court modified the same by holding that besides the plaintiffs the second defendant would also be a legal heir as he is a legitimate son of deceased Narasinghan by virtue of the provisions of Sec.16 of the Hindu Marriage Act, 1955 as amended. On appeal, the lower appellate court modified the same by holding that besides the plaintiffs the second defendant would also be a legal heir as he is a legitimate son of deceased Narasinghan by virtue of the provisions of Sec.16 of the Hindu Marriage Act, 1955 as amended. Defendants 1 and 2 are aggrieved of the grant of decree in favour of the plaintiffs and they have preferred this appeal. There is no memorandum of cross objections at the instance of the plaintiffs. .3. The question whether the first plaintiff is the legally wedded wife of deceased Narasinghan is a question of fact. The courts below have considered the entire evidence on record and come to the conclusion that-the first plaintiff was married to deceased Narasinghan somewhere in 1943 and she was a properly wedded wife. It is also found on facts that the second plaintiff and the 8th defendant are children born to the first plaintiff and Narasinghan. The findings of the courts below are attacked by learned counsel for the appellants on this ground. According to him the evidence given by the witnesses examined by the plaintiffs is wholly discrepant in material particulars and no reliance could have been placed by the courts of fact on such evidence. It is submitted that according to the first plaintiff as P.W.1 she was married about 47 years prior to her deposition while according to P.W.2 she was married thirty years prior to his deposition. It is submitted that according to P. W.3 the marriage took place 40 years prior to his evidence and according to P.W.7 the marriage took place in 1943. No doubt there is discrepancy with regard to the year of the marriage. But that has been taken note of by both the courts below. When the matter is spoken to by witnesses after more than three decades it is quite natural that they are not in a position to give the date or year correctly. The witnesses are not highly educated so as to remember it precisely. Their natural deficiencies have been taken into account by the courts below and it is found that the first plaintiff was married to deceased Narasinghan somewhere in 1943. One important circumstance is that P.Ws.2 and 3 are the brothers of deceased Narasinghan and they have given evidence in support of the plaintiffs’ case. Their natural deficiencies have been taken into account by the courts below and it is found that the first plaintiff was married to deceased Narasinghan somewhere in 1943. One important circumstance is that P.Ws.2 and 3 are the brothers of deceased Narasinghan and they have given evidence in support of the plaintiffs’ case. That evidence cannot certainly be ignored by Courts. The evidence of P.W.7 is also taken into account properly by the courts below. I do not find any infirmity in the discussion of the evidence by the courts below. Ex.A-8 is a copy of the invitation issued for the marriage of the eighth defendant. That describes the eighth defendant as the daughter of Narasinghan. The marriage took place in 1966. The postal seals found on Ex.A-8 show that it was a genuine invitation posted in 1966 to the addressee and the courts below have rightly placed reliance on the same. Taking an overall picture of the entire evidence it is very clear that the findings of the courts below are unassailable on this aspect of the matter. There is no warrant for interfering with the same. .4. Coming to the marriage of the first defendant it is her case that she got married three days before the death of Mahatma Gandhi, i.e., she got married in the beginning of 1948. Reliance is placed upon the oral evidence adduced by the first defendant herself and her son, the second defendant. According to the evidence of the second defendant as D.W.I the marriage took place in the year 1949. According to him he heard from his mother that the marriage took place in 1949. The evidence adduced by the defendants has been fully considered by the Courts below. There is no evidence worthy of acceptance to hold that the first defendant was married to Narasinghan in 1948 as contended by her. Nothing can be inferred from the date of birth of the second defendant in favour of the defendants’ contention. On the other hand, it is seen from the records that the first defendant must have been born somewhere in 1939. In fact, the date of birth of the first defendant is clearly given by Narasinghan himself in Ex.B-13, in the nomination forms signed by him. According to Ex.B-13 the first defendant was born on 3. 1939. The second defendant was born on 111. 1962. In fact, the date of birth of the first defendant is clearly given by Narasinghan himself in Ex.B-13, in the nomination forms signed by him. According to Ex.B-13 the first defendant was born on 3. 1939. The second defendant was born on 111. 1962. The first defendant could not have been married at the age of nine years in 1948. Her version that she got children even from 1949 onwards cannot be accepted as she would have been hardly ten years’ old at that time. Hence the version put forward by the defendants has been rightly disbelieved by the courts below. There is no justification for interference with the same. 5. It is vehemently contended by learned counsel for the appellants/defendants 1 and 2 that the nominations being in favour of defendants 1 and 2 the plaintiffs cannot claim any right to the service benefits. According to him, the provisions of the Provident Fund Act and the Rules framed thereunder are peculiar and they exclude the normal rules of succession. His contention is that the rulings relating to nomination in insurance polices and nomination with regard to other funds will not apply to a case of nominaiion with reference to provident fund. He referred to a number of judgments to support his contention. I find it wholly unnecessary in this case to decide this question as there is nothing on record to show that any nomination was made by deceased Narasinghan in favour of defendants land 2 or anybody else with regard to his provident fund. Ex.A-12 which is equivalent to Ex.B-13 shows that there was no nomination with regard to the provident fund. As deceased Narasinghan was due to retire on 30.6.1985 his pension papers were prepared and forwarded to the concerned authorities. They included the nomination forms also. While making the nomination with reference to family pension and gratuity the deceased Narasinghan did not make any nominaiion for provident fund or family benefit fund. A letter written by the Assistant Director (Agriculture), Seed Centre, who is the third defendant in the suit, to the Joint Director, who is the fourth defendant, on 210. 1984 under Reference No.A/8529/84 shows clearly that there was no nomination whatever with regard to the provident fund. A letter written by the Assistant Director (Agriculture), Seed Centre, who is the third defendant in the suit, to the Joint Director, who is the fourth defendant, on 210. 1984 under Reference No.A/8529/84 shows clearly that there was no nomination whatever with regard to the provident fund. In the absence of any evidence on record to show that the deceased made a nomination with reference to provident fund it is unnecessary for me to decide the question of law argued at some length by learned counsel for the appellants-defendants. .6. With regard to the family pension the deceased nominated the first defendant alone a the person entitled to receive the same. With regard to the gratuity he made two nominations. In the first he nominated the first defendant only and in the second nomination he nominated the first and second defendants, with a direction that each shall be paid half thereof. 7. As regards the first defendant the nomination is clearly invalid as she is not a member of the family of the deceased Narasinghan. As she is not the legally wedded wife of the deceased, she cannot claim to be a member of the family. 8. The Tamil Nadu Pension Rules define a family as follows: (Vide Rule 45(5)): “45(5) for the purposes of this rule and rules 46,47 and 48 ‘family’, in relation to a Government servant means: .(i) wife or wives, including judicially separated wife or wives in the case of a male government servant; .(ii) husband, including judicially separated husband, in the case of female Government servant. (iii) sons including step sons and adopted sons, (iv) to (xi) xxxxxxxxxxx.” Rule 46 is to the effect that the gratuity payable under Rule 45, shall be paid to the person or persons on whom the right to receive the gratuity is conferred by means of a nomination under Rule 48. Rule 48 provides that the Government servant shall make a nomination in Form 1 or Form 2, as may be as appropriate in the circumstances of the case conferring on one or more persons the right to receive the death-cum-retirement gratuity payable under Rule 45. Rule 48 provides that the Government servant shall make a nomination in Form 1 or Form 2, as may be as appropriate in the circumstances of the case conferring on one or more persons the right to receive the death-cum-retirement gratuity payable under Rule 45. The proviso to the rule is to the effect that the nomination shall not be in favour of any person or persons other than the members of his family and such nomination shall be in the order laid down in sub-sec.(5) of Rule 45. Hence the nomination made by deceased Narasinghan with regard to his family pension and death-cum-retirement gratuity are not valid as they are not in accordance with Rules 45 and 48 of the Tamil Nadu Pension Rules. .9. In so far as pension is concerned, the only nominee is the first defendant. She not being a member of the family as defined under Rule 45(5) of the Tamil Nadu Pension Rules, the nomination is invalid. 10. With regard to the death-cum-retirement gratuity, the nomination is invalid because it is not in the order specified in Rule 45(5). It takes in the first defendant who is not the legally wedded wife of the second defendant. The first entry relaies to the wife; the second to the husband and the third entry relates to the sons. In this case, the first plaintiff is the legally wedded wife of the deceased Narasinghan. So long as she is alive, there cannot be any nomination in favour of the second defendant, who is a son. Hence the nominations made by the deceased in favour of the first and second defendants are not valid in law and they cannot be acted upon. Moreover, even before the nomination was finalised by sending the same to the appropriate authority Narasinghan died on account of the accident and the process was not complete. In the circumstances defendants 1 and 2 cannot make any claim on the footing of the nominations made by deceased Narasinghan. 11. It, therefore, follows that the first plaintiff is the legally wedded wife of deceased Narasinghan and the second plaintiff and 8th defendant arc their legitimate children. 12. In the circumstances defendants 1 and 2 cannot make any claim on the footing of the nominations made by deceased Narasinghan. 11. It, therefore, follows that the first plaintiff is the legally wedded wife of deceased Narasinghan and the second plaintiff and 8th defendant arc their legitimate children. 12. Though it could be contended that the second defendant is not a legitimate son of the deceased because of the interpretation placed on Sec.16 of the Hindu Marriage Act by a Division Bench of this Court in Valliammal v. Komalambal, (1990)1 L. W. 461, the plaintiffs not having filed any memorandum of cross objections, have allowed the decree granted by the lower appellate Court to become final. Hence the second defendant’s right to claim a share of the service benefits payable to the deceased has to be upheld. .13. Consequently, the judgment and decree passed by the District Court, Cuddalore, in A.S.No.18 of 1988 are confirmed. The second appeal fails and it is dismissed. There will be no order as to costs. Civil Miscellaneous Appeal No.68 of 1991: This appeal arises out of an application for payment of the compensation amount awarded in M.A.C.T.O.P.No.796 of 1984 by the Motor Accidents Claims Tribunal, Cuddalore, in favour of the legal heirs of deceased Narasinghan, who died on account of the accident. The award was passed on 112. 1986. The dispute is between the appellants on the one hand and respondents 3 and 4 on the other. The Tribunal directed the amount to be deposited in court and held that the legal heirs of late Narasinghan were entitled to withdraw the same from the court by producing the judgment in the civil case after final adjudication of the suit. After the disposal of the civil case by the trial court in O.S.No.1258 of 1984 and the confirmation of the decree by the District Court in A.S.No.18 of 1988, the first appellant filed I. A.No.87of 1990 for payment out of the amount. The tribunal dismissed the application holding that the matter was pending in second appeal. Aggrieved by the said order, the first appellant has preferred this appeal. 14. During the pendency of the appeal the first appellant died and her daughter is brought on record as her legal representative. She has claimed that the share due to the first appellant has been bequeathed to her by the Will executed by the first appellant. Aggrieved by the said order, the first appellant has preferred this appeal. 14. During the pendency of the appeal the first appellant died and her daughter is brought on record as her legal representative. She has claimed that the share due to the first appellant has been bequeathed to her by the Will executed by the first appellant. The Will is not disputed by the other daughter of the first appellant, viz., Poongothai who was the eighth defendant in the civil suit, O.S.No.l258 of 1984. Hence it has to be held that the second appellant, viz., Mangai, is entitled not only to her share but also to the share of her mother, deceased first appellant. 15. To-day, I have disposed of S.A.No.1324 of 1989 holding that the legal heirs of Narasinghan are, (1) Kiliambal, (2) Mangai, (3) Poongothai, and (4) Murugan. Kiliyambal is the first appellant in this civil miscellaneous appeal. Mangai is the second appellant. She is entitled to a one-half share. Poongothai is not a party to this appeal. She is entitled to one-fourth share. She was a party to the civil suit. The other one-fourth share belongs to the fourth respondent Murugan. The Tribunal shall pay half of the amount to the second appellant; one-fourth to the fourth respondent Muru-gan and another one-fourth to Poongothai,who is not a party to this appeal. It is open to Poongothai to apply to the Tribunal, if so advised, for payment of the said one-fourth share. This appeal is allowed accordingly with the above directions. No costs.