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2008 DIGILAW 2974 (MAD)

N. Kalaiselvi & Another v. The General Manager, Salem District Central Co-operative Bank Ltd. & Others

2008-08-18

R.BANUMATHI

body2008
Judgment :- Kalavathi, daughter of Late Muthusamy has filed W.P.No.38519/2004 to disburse entire terminal benefits payable towards death of late Muthusamy. 2. W.P.No.5984/2006 has been filed by the petitioner, wife of late Muthusamy to consider her representation dated 011. 2005 and to pay the terminal benefits of Muthusamy in her favour. 3. Since common points are involved in both writ petitions, both writ petitions were heard together and shall stand disposed by this common order. For convenience, parties are referred in their rank in W.P.No.5984/2006. 4. Late Muthusamy was employed in Salem District Co-operative Bank. Muthusamy died on 07.09.2003. According to 3rd respondent, she being the daughter is entitled to the entire terminal benefits. It is the further case of the 3rd respondent that in S.O.P.No.15/2004 succession certificate was issued to the effect that she and Pappathiammal, mother of Muthusamy, are the legal heirs. Earlier the 3rd respondent has filed W.P.No.34585/2003 and obtained directions from the court regarding disbursement of terminal benefits. 5. Case of petitioner in W.P.No.5984/2006 is that after the death of first wife, Muthusamy married her on 12.03.1995 and that she was living with Muthusamy as legally wedded wife. According to the petitioner, she being wife of Muthusamy, she is the legal heir of Muthusamy and therefore, she is entitled to the terminal benefits. Petitioner had sent a detailed representation to the 2nd respondent on 011. 2005 and the petitioner seeks consideration of her representation and disbursement of terminal benefits to her. 6. Heard both. 7. The learned counsel for the 3rd respondent Ms. S. Geetha contended that the petitioner has not produced any document to prove her marriage with Muthusamy. It was further contended that the registration certificate filed by the petitioner issued by Village Administrative Officer is not a reliable one. The learned counsel for the 3rd respondent further submitted that she being the daughter is entitled to the entire terminal benefits. 8. The learned counsel for the petitioner Mr. P. Jagadeesan would submit that petitioner has produced prima facie material to prove the marriage by producing the register maintained by the village Administrative Officer and on that basis marriage must be deemed to have been proved. The learned counsel would further submit that suitable directions are to be given to the 2nd respondent for disbursement of due share of terminal benefits to the 2nd respondent. .9. Muthusamy died on 07.09.2003. The learned counsel would further submit that suitable directions are to be given to the 2nd respondent for disbursement of due share of terminal benefits to the 2nd respondent. .9. Muthusamy died on 07.09.2003. The Tahsildar, Namakkal, had issued legal heirship certificate that Pappathiammal(Mother) and Kalaiselvi (Daughter) are the legal heirs of Muthusamy. On Petition filed by 3rd respondent, District Court, Namakkal had issued succession certificate in S.O.P.No.15/2004 to the effect that Pappathiammal and 3rd respondent Kalai Selvi are the legal heirs of late Muthusamy. 10. The petitioner claims that she is the legally wedded wife of Muthusamy and that the marriage was solemnised on 12.03.1995. The petitioner has produced the extract of Marriage Register maintained by the Village Administrative Officer, which indicates that the date of marriage of the petitioner and Muthusamy was on 12.03.1995. 11. Rule 3 of the Tamil Nadu Hindu Marriage (Registration) Rules, 1967 was amended by G.O.Ms.No.1568, Home (Courts-IV), 18th November 1998, appointing all the Village Administrative Officers of Revenue Department as Marriage Registrars within their respective jurisdiction for the purpose of the said rules. The amendment Rule was notified by Gazette notification on 212. 1998. 12. The learned counsel for the petitioner submitted that the Marriage Register maintained by Village Administrative Officer in his official course is a strong piece of evidence proving the marriage and the court has to take note of the entries in the marriage register. 13. Per contra, learned counsel for the 3rd respondent raised doubts regarding the entries made there on. Though, doubts were raised regarding the entries in the marriage register, the petitioner has produced photo identity card which would also indicate that the petitioner is wife of Muthusamy. 14. However, since dispute is being raised regarding status of the petitioner, the merits of the petitioners plea and her status is a disputed question of fact which can be determined only by civil court. Dispute as to the right of status and right to the terminal benefits cannot be disputed in the proceedings under Article 226 of the Constitution of India. The question, whether petitioner is legally wedded wife or not involves recording of evidence and analysis of the same, which cannot be done in writ proceedings. .15. Dispute as to the right of status and right to the terminal benefits cannot be disputed in the proceedings under Article 226 of the Constitution of India. The question, whether petitioner is legally wedded wife or not involves recording of evidence and analysis of the same, which cannot be done in writ proceedings. .15. As held by the Honble Supreme Court in ( AIR 1964 SC 1419 : 1964(6) SCR 654 ), Thansingh Nathmal V A.Mazid, Supdt of Tax, the High Court does not generally enter upon determination of questions of fact. Determination of status of petitioner involves adjudication on disputed question of facts and law which cannot be determined in the proceedings under Article 226 of Constitution of India. From the submissions of learned counsel for the 2nd respondent/bank it comes to be known that around Rs.10,00,000/-is payable towards terminal benefits. Out of which an amount of Rs.66,848/-with subsequent interest is said to be due towards the house loan borrowed by late Muthusamy. 116. Learned counsel for the 3rd respondent has submitted that deceased Muthusamy had nominated the 3rd respondent -the daughter to receive the provident fund accumulation by filling up the form on 16.03.2000. The learned counsel for the 3rd respondent has further submitted that since the 3rd respondent was appointed as an Nominee, the 3rd respondent alone would be entitled to receive the terminal benefits. This contention does not merit acceptance. It is well settled that the Nominee is only a receiving hand on behalf of all the legal heirs. Therefore, it is not open to the 3rd respondent to contend that she being the Nominee, is entitled to receive the entire terminal benefits. 117. Since the 3rd respondent is admittedly daughter, The 2nd respondent/bank is directed to disburse 25 % of the terminal benefits payable to Muthusamy to the 3rd Respondent, viz., Kalaiselvi. It is open to both parties to approach the Civil court to establish their right within a period of four months from the date of receipt of a copy of this order. Till the civil suit is determined remaining terminal benefits shall be kept in fixed deposit so that the interest accrued shall enure to the benefit of either of the rival claimants. 118. With the above observations and directions both the writ petitions shall stand disposed of. No costs.