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2008 DIGILAW 3564 (MAD)

Krishnammal v. A. Mary & Others

2008-09-25

A.C.ARUMUGAPERUMAL ADITYAN

body2008
Judgment :- This appeal has been directed against the decree and judgment in O.S.No.153 of 2002 on the file of the II Additional Family Court, Chennai. 2.The averments in the plaint in brief relevant for the purpose of deciding this appeal runs as follows:- 2(a) The marriage between the plaintiff and her deceased husband G.Janakiraman was solemnised according to the Hindu rites and rituals on 11. 1985 at P.V.N.Kalyana Mandapam, No.16, Nettu Pillaiyar Koil Street, Madras. After the marriage the plaintiff and her deceased husband lived as legally wedded wife and husband. Thereafter, the first defendant treated the plaintiff with cruelty and that the plaintiff was driven out of the matrimonial home and forced to live with her parents. 2(b) The plaintiff filed Maintenance Case No.55 of 1990 before the Additional Family Court, Chennai. The Maintenance was ordered to the plaintiff at the rate of Rs.400/-per month initially, later it was enhanced to Rs.500/-pm. Even though the plaintiffs husband was very affectionate with the plaintiff, the first defendant never allowed for reunion. The plaintiffs husband was employed as Technician, Grade-II, Token No.4351, EME IV Container Handling Department, in the Chennai Port Trust. During the employment of plaintiffs husband, he has taken two life Insurance Policies Nos.44008699 and 711371095 with the third defendant. The plaintiffs husband nominated the first defendant his mother as nominee. After the Marriage, the name of the nominee, viz. mothers name (D1), continued without changing the name of the plaintiff, who is the legal heir under the Hindu Succession Act. Nominating any one of them in the Insurance Police is restricted only for the collection of the money after the maturity of policy or the death of the policy holder. The object of the Insurance policy nomination is only for collecting money on behalf of all the legal heirs. The name of the plaintiff after the marriage was not changed by her husband, when he was alive, that will not deprive her to claim under the policy as per the Hindu Succession Act 1956. 2(c) The plaintiffs husband expired on 16. 2002 at the Port Trust Hospital due to Jaundice and the plaintiff attended the funeral ceremony on 16. 2002 as a dutiful wife. But the family members of the first defendant apprehended that the plaintiff will claim the LIC policy amount and the death benefits of the port trust. 2(c) The plaintiffs husband expired on 16. 2002 at the Port Trust Hospital due to Jaundice and the plaintiff attended the funeral ceremony on 16. 2002 as a dutiful wife. But the family members of the first defendant apprehended that the plaintiff will claim the LIC policy amount and the death benefits of the port trust. The marriage between the plaintiff and her husband was admitted in the proceedings before the Family Court. The plaintiff is the legal heir along with the mother of the deceased husband. But the first defendant contested and attempted to deny the right of the plaintiff. The plaintiff constrained to file the suit for declaration and consequential reliefs. The plaintiff sent a legal notice under Section 80 of C.P.C. on 26. 2002 to the second defendant, in which the date of marriage was wrongly mentioned as 13. 1987 instead of 11. 1985. As the legal heir of the deceased G.Janakiraman, the plaintiff is entitled to half share in the death benefits of her deceased husband under the Hindu Succession Act and also in the Family Pension. The plaintiff is aged 37 years and the first defendant is aged about 65 years. Under the compassionate ground the plaintiff is entitled to get a job in the Port Trust. There is no one to lookafter the plaintiff. Hence, the suit for declaration that the plaintiff is the legally wedded wife of the deceased G.Janakiraman, as the legal heir of the deceased G.Janakiraman, and also for a direction directing the defendants 2 to 4 to pay the death benefits standing in the account of the second defendant and the family pension to the plaintiff and for costs. 3.The first defendant in her written statement would contend as follows:- 3(a) The plaintiff was not at all having any relationship with her late husband and till his death, she was receiving only the maintenance amount as ordered by the Court. The plaintiff was booked under adultery by P-1 Police Station for her illegal relationship with one Charles, S/o.Gnanaprakasam on 11.08.1996 and it is pending. Hence, the plaintiff is not entitled to any monetary right of her late husband. The plaintiff was booked under adultery by P-1 Police Station for her illegal relationship with one Charles, S/o.Gnanaprakasam on 11.08.1996 and it is pending. Hence, the plaintiff is not entitled to any monetary right of her late husband. The maintenance case is criminal in nature as to the petition under Section 125 of Cr.P.C. The plaintiff has deserted her husband from 1986 onwards and she has not at all lived with her late husband and moreover there is no record of evidence in any book maintained in second defendants office to show that the plaintiff is the legally wedded wife of the deceased Janakiraman. Only to grab at the terminal benefits of the deceased Janakiraman, this suit has been filed by the plaintiff vexatiously. The plaintiff does not know even the date of marriage with the deceased Janakiraman that is why she has stated that the date of marriage as 13. 1987 in the letter addressed to the second defendant. The plaintiff is leading a adultery life with one Charles. Hence, the suit is liable to be dismissed. 3(b) In the Additional Written statement the first defendant would contend that the fifth defendant is not a necessary party to the suit and there is no proof as to the fact that the fifth defendant had married Janakiraman. Since the plaintiff is a Christian and the first defendants son Janakiraman was a Hindu, there is no valid marriage between the plaintiff and the deceased Janakiraman. The plaintiff cannot take shelter under the provisions of the Hindu Marriage Act, 1955. 3(c) The second defendant in his written statement would contend that the deceased Janakiraman was working as a Technician Grade I in Electrical and Mechnaical Department of Chennai Port Trust. The said Janakiraman died on 16. 2002 and the settlement of accounts of the late employee has not been made due to rival claims. This defendant had received the legal notice dated 26. 2002 sent by the plaintiff through her advocate. As per the family particulars furnished by Janakiraman, the family members are as follows:- 1)Govindaswamy, Father, 43 years as on 1980, 2) Krishnammal, Mother, 35 years as on 1980, 3)J.Mary, wife, 18 years as on 21.07.1985. Janakiraman has nominated his mother Krishnammal for P.F. Assets. Apart from Krishnammal and J.Mary, one Lalitha (D5) also made a claim for terminal benefits stating that she is the wife of late G.Janakiraman. Janakiraman has nominated his mother Krishnammal for P.F. Assets. Apart from Krishnammal and J.Mary, one Lalitha (D5) also made a claim for terminal benefits stating that she is the wife of late G.Janakiraman. In view of the rival claims of the above said three persons, they were advised to produce an order from the Court for receivin the terminal benefits of late G.Janakiraman. Hence, the suit is liable to be dismissed. 4. The third defendant remained exparte. .5. The fourth defendant in his written statement would contend that the plaintiff may be legally wedded wife of the deceased Janakiraman, -policy holder. When the deceased Janakirman took the policies in the year 1990, he was already married as per the statement of the plaintiff, Janakiraman was living happily with the plaintiff till his death. When Janakiraman took policies, he nominated his mother to receive all benefits arising out of the policies in the event of his death. The appointment of nominees is a declaration when he/she is eligible to give a valid discharge under 39 of Insurance Act, 1938. If the policy holder late Janakiraman died intestate or without making any nomination under Section 38 of the Insurance Act naturally all the legal heirs of the deceased acquire right to share the benefits of polices. The deceased Janakiraman had appointed a nominee, who is none other than his mother, the question of considering the right of the plaintiff who claims to be the wife of the deceased for insured amount will not and shall not arise. The appointment of nominee by the policyholder disinherits all other legal heirs and the nominee alone be the beneficiary of the proceeds of the policy. The contention of the plaintiff that the Hindu Succession Act overrides Section 39 of the Insurance Act 1938 does not hold good. The right of nominee in terms of Insurance Act is not in conflict with Hindu Succession Act as per Judgment reported in AIR 1984 SC 384. The plaintiff had admitted that she was receiving maintenance of Rs.400/-per month as per the Family Courts order in M.C.No.55 of 1990. This will go to show that the plaintiff is the wife of the late Janakiraman. There is no cause of action for the suit. .Hence, the suit is liable to be dismissed. 6. The plaintiff had admitted that she was receiving maintenance of Rs.400/-per month as per the Family Courts order in M.C.No.55 of 1990. This will go to show that the plaintiff is the wife of the late Janakiraman. There is no cause of action for the suit. .Hence, the suit is liable to be dismissed. 6. The fifth defendant in her written statement would contend that the marriage between the plaintiff and the deceased G.Janakiraman was not solemnised on 11. 1985 as alleged by the plaintiff in the plaint. The fifth defendant is the legally wedded wife of the deceased Jankiraman, who married this defendant on 112. 1995 at Arulmigu Vadivudaiamman Thiru Koil Thiruvotriyur. The first defendant and her son G.Ravikumar performed the marriage and this defendant lived together with her husband G.Janakiraman till his death. This defendant does not aware of the facts under what circumstances the Maintenance Case No.55 of 1990 was filed before the family Court. The maintenance order itself is not sufficient that the plaintiff is the legally wedded wife of the deceased G.Janakiraman. The fifth defendants husband Janakiraman was an employee as Technician, Grade I, Token No.4351 in the Chennai Port Trust. Janakiraman had taken two life insuracne Policies Nos.44008659 and 711371095 with the third defendant and the first defendant is a nominee in LIC policies. This defendant is being a legally wedded wife and legal heir entitled for ½ share in the policy amounts. The plaintiff is not a legally wedded wife of the deceased Janakiraman. The plaintiff had left away from the matrimonial home and now she is living with one Charles and also begotten children through Charles. Janakiraman expired on 16. 2002 at the Port Trust Hospital. This defendant performed all the obsequies according to Hindu Rites and customs after the death of her husband Janakiraman. The plaintiff did not attend the funeral. The plaintiff is not a legal heir of the deceased husband Janakiraman. The plaintiff has no right to claim half share in the terminal benefit of the deceased Janakiraman. The first defendant and her son G.Ravikumar with a mala fide intention to deprive the rights of this defendant (D5) as a revenge against this defendant lodged a complaint in the All Women Police, for the harassment and cruelty caused by them to this defendant. The first defendant and her son G.Ravikumar with a mala fide intention to deprive the rights of this defendant (D5) as a revenge against this defendant lodged a complaint in the All Women Police, for the harassment and cruelty caused by them to this defendant. The first defendant and her son G.Ravikumar set up the plaintiff to file this suit and they have colluded to obtain a compromise decree in favour of them to deprive the right of this defendant. This defendant is the legally wedded wife of the deceased Janakiraman. This defendant has also paid Court fee for the relief of declaring this defendant as the legally wedded wife of the deceased Janakiraman. .7. On the above pleadings the learned trial Judge has framed four issues for trial. Before the trial Court the plaintiff has examined himself as P.W.1 and exhibited Ex.P.1 to Ex.P.10 and on the side of the respondents R.W.1 to R.W.4 were examined and Ex.R.1 to Ex.R.9 were marked. Ex.X.1 to Ex.X.9 were marked as Court exhibits. After going through the evidence both oral and documentary the learned trial Judge has held that the plaintiff and D1 are entitled to each half share in all the assets and terminal benefits of the deceased Janakiraman and has left open the question, who is entitled to the family pension to be decided by he Port Trust Authority as per the rules in terms of the judgment delivered by him and also held that the plaintiff and D1 are entitled to a share in the amount due to the LIC Policies of the deceased Janakiraman. Aggrieved by the findings of the learned trial Judge the first defendant has preferred this appeal. 8. C.M.P.No.801 of 2006 was filed under Order 41 Rule 27 of CPC to receive the following documents as additional documents. 1. Letter written by Charles to R1. 2. Receipt given by the Pulianthope Police for having received the complaint from Charles. 3. GPF/CPF statement from Chennai Port Trust 4. Identity card of the deceased Janakiraman 5. Pay Bill of the deceased Jankairaman 6. Last Will executed by the deceased Jankiraman, dated 16. 2002. 7. Death report given by the Port Trust Hospital, Chennai. 8. Report of death given by the burial ground authority. 9. Death certificate of Janakiraman 10. Uthirakiryai card 11. Legal heirship certificate 12. Letter sent by the Chief Mechanical Engineer to the appellant. 113. Last Will executed by the deceased Jankiraman, dated 16. 2002. 7. Death report given by the Port Trust Hospital, Chennai. 8. Report of death given by the burial ground authority. 9. Death certificate of Janakiraman 10. Uthirakiryai card 11. Legal heirship certificate 12. Letter sent by the Chief Mechanical Engineer to the appellant. 113. Ration Card. Out of the above said 13 documents the only relevant document is the alleged the last Will executed by the deceased Janakiraman on 16. 2002. A perusal of the Xerox copy of the Will dated 16. 2002 shows that it has not been attested by any of the witnesses. Under Section 68 of the Evidence Act, a Will is a document to be attested atleast by two witnesses. Under such circumstance, no useful purpose will be served even if the said Will is allowed to be received as an additional document. Even the legal heir certificate produced by the petitioner shows that it cannot be produced before the Court of law. The other documents viz., death certificate of Janakiraman, receipt given by the Pulianthope Police for having received the complaint from Charles, GPF/CPF statement from Chennai Port Trust, Identity card of the deceased Janakiraman, Pay Bill of the deceased Janakiraman, Death report given by the Port Trust Hospital, Chennai, Report of death given by the burial ground authority, Death certificate of Janakiraman, Uthirakiryai card, Letter sent by the Chief Mechanical Engineer to the appellant and Ration Card are all of no use to decide the issue in this case. Hence, CMP.No.803 of 2008 is liable to be dismissed. 9. As far as the above appeal is concerned the following points arose for consideration:- 1) Whether the plaintiff is the legally wedded wife of the deceased Janakiraman? 2) Whether the decree and judgment in O.S.No.153 of 2002 on the file of the II Additional Family Court, Chennai, is liable to be set aside for the reasons stated in the memorandum of appeal? 10. Point No.1:-Ex.P.2 is the copy of the order in M.C.No.55 of 1990 filed by the plaintiff against Janakiraman under Section 125 of Cr.P.C. for maintenance. Under the said petition the present plaintiff was awarded a maintenance of Rs.400/- pm. The marriage invitation card dated 11. 1985 was produced and marked as Ex.P.1 in this suit, which was marked as Ex.P.2 in the said M.C.No.55 of 1990. Under the said petition the present plaintiff was awarded a maintenance of Rs.400/- pm. The marriage invitation card dated 11. 1985 was produced and marked as Ex.P.1 in this suit, which was marked as Ex.P.2 in the said M.C.No.55 of 1990. The said Janakiraman till his life time has not preferred any appeal to set aside the order passed in M.C.No.55 of 1990. The first defendant is the mother of the deceased Janakiraman/mother-in-law of the plaintiff. Ex.X.1 to Ex.X.9 were marked to show that while Janakiraman was alive, he had preferred a police complaint against the plaintiff stating that she was living in adultery and was living with one Charles. But those complaints are all emanated after the order for maintenance was passed in favour of the plaintiff under M.C.No.55 of 1990 dated 14. 1991. So we cannot attach any relevancy to Ex.X.1 to Ex.C.9 because they are motivated and only to assassinate the character of the plaintiff. Those complaints have been preferred against the plaintiff by Janakiraman under Ex.X.3, 5 etc., Further it is pertinent to note that the deceased Janakiraman while he was alive had filed O.P.NO.1148 of 1994 for divorce under Section 13(1)(i)and (ib) of the Hindu Marriage Act, 1955 against the plaintiff herein and the said Charles. The relief asked for under the said OP by the plaintiff was a decree for divorce against R1 therein / plaintiff herein. The certified copy of the order passed in O.P.No.1148 of 1994 was marked as Ex.P.10 before the trial Court, which shows that Janakiraman failed to pursue the said petition and the said petition was dismissed on 2. 1997 itself and thereafter till the death of the Janakiraman on 16. 2002, Janakiraman has not taken any steps to revive the said petition. While passing a decree for maintenance under Ex.P.2 the learned II Additional Family Court has considered all the circumstances and after coming to the conclusion that the present plaintiff / petitioner in M.C.No.55 of 1990 is a legally wedded wife of Janakiraman had awarded a maintenance amount of Rs.400/-per month. It is in evidence that the said maintenance amount was subsequently been enhanced to Rs.500/- pm. Janakiraman has also not taken any steps to set aside the order of maintenance passed in M.C.No.55 of 1990. Under such circumstance, it cannot be said that the plaintiff is not a legally wedded wife of Janakiraman. It is in evidence that the said maintenance amount was subsequently been enhanced to Rs.500/- pm. Janakiraman has also not taken any steps to set aside the order of maintenance passed in M.C.No.55 of 1990. Under such circumstance, it cannot be said that the plaintiff is not a legally wedded wife of Janakiraman. The fifth defendant would contend that she is the legally wedded wife of Janakiraman and she has also paid Court fee for declaration of the same. According to her, her marriage with Janakiraman was solemnized at Vadioodai Ammal Temple, Thiruvetriyur and on the date of marriage itself the parents of D5 had offered gifts to the bridegroom viz. Janakiraman. Ex.R.1 is the Seervarisai list (gifts list) relied on by D5 in support of her contention. To prove Ex.R.1, D5 has also examined one Aramuthu (R.W.4). But the said Aramuthu in his cross-examination would state that he does not know who wrote Ex.R.1. Under such circumstance, the presence of R.W.4 at the time of execution of Ex.R.1 itself is highly doubtful. The other witness to Ex.R.1 is Paulraj, who was not examined to prove that contention of D5 that the marriage between her(D5) and Janakiraman took place at Vadioodai Amman Kovil Temple, Thiruvetriyur. According to R.W.4, after D5 and the deceased lived together as husband and wife in a Port Trust quarters, which belongs to the uncle of Janakiraman. But the said uncle of Janakiraman ie, the owner of the alleged port trust quarters was not examined on the side of D5. Under such circumstance, as rightly held by the learned trial Judge it cannot be said that D5 is the legally wedded wife of the deceased Janakiraman. The learned trial Judge has observed that even though the name of D1 was pointed out as a nominee in the LIC policies of Janakiraman as per the Hindu Succession Act, the legal heirs of the deceased Janakiraman are all entitled to a equal share in the amount due under the LIC Polices, ie., D1 (mother) half share and plaintiff (wife) half share. As rightly held by the learned trial Judge, the Port Trust Authorities have to consider as per the rules to whom the family pension is payable as class-1 heirs of Janakiraman under the Hindu Successions Act. The plaintiff and D1 are each entitled to half share in all the assets and terminal benefits of the deceased Janakiraman. As rightly held by the learned trial Judge, the Port Trust Authorities have to consider as per the rules to whom the family pension is payable as class-1 heirs of Janakiraman under the Hindu Successions Act. The plaintiff and D1 are each entitled to half share in all the assets and terminal benefits of the deceased Janakiraman. I do not find any reason to interfere with the well considered judgment of the learned trial Judge, which is neither infirm nor illegal. Hence, I hold on Point No.1 that the plaintiff is the legally wedded wife the of the deceased Janakiraman. 11. Point No.2:- In view of my findings in the earlier paragraphs, I do not find any reason to interfere with the judgment of the learned trial Judge in O.S.No.153 of 2002 on the file of the II Additional Family Court, Chennai, which is neither illegal nor inform. Point No.2 is answered accordingly. 12. In fine, the appeal is dismissed confirming the decree and judgment of the learned trial Judge in O.S.No.153 of 2002 on the file of the II Additional Family Court, Chennai. No costs. At this juncture the learned counsel appearing for the fifth defendant would represent that D5 had lived with Janakiraman for more than seven years. If it is so, while granting family pension the said fact may be taken into consideration by the Port Trust Authorities as per law. C.M.P.No.801 of 2006 is dismissed.