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2011 DIGILAW 1106 (MAD)

C. Rosali alias Terasa Mary v. W. Usha

2011-03-02

M.M.SUNDRESH, R.BANUMATHI

body2011
Judgment :- (R. BANUMATHI, J.) 1. This appeal arises out of the order dated 07.09.2010 in A.No.882 of 2010 in O.P.No.112 of 2010 whereby the learned single Judge declined to issue pro-order, prohibiting the second respondent/Garnishee from disbursing 2/3rd of family pension for the benefit of minors. 2. The brief facts are that the appellant's son Wilson married the respondent – Usha and the minors Alfred James and Mary Immaculate Christina were born on 30.03.1995 and 23.01.1997 respectively. The appellant's son Wilson died on 27.08.2008 leaving behind his wife – the first respondent and his mother - the appellant and the two minor children as the surviving legal heirs. During his life time, deceased Wilson was employed in Chennai Port Trust and given IBD No.43356 PMI Card No.E/18508/ME. After the death of Wilson, family pension scheme available with the Chennai Port Trust was sanctioned to the first respondent vide Pension Pay Order No.13393. 3. The case of appellant is that after the death of Wilson, the first respondent did not take care of the minors and the minor children also refused to stay with the first respondent. The appellant is having custody of the minors and she is acting as guardian and is said to be maintaining the minors and also taking care of their welfare. The appellant has alleged that after abandoning the minor children, the first respondent is living with some other person and she is not taking care of the minor children. The appellant has sent a legal notice to the Chennai Port Trust on 16.11.2009 to pay to the minors their legitimate share of the pension as well as the D.C.R.G. In the said notice, the appellant had also asked Chennai Port Trust not to consider the first respondent for giving employment on compassionate grounds and the job has to be given to one of the minor children as and when they attain majority. Alleging that the first respondent has not taken care of the minor children, the appellant had filed O.P.No.112 of 2010 under Sections 3 and 7 to 10 of Guardian and Wards Act. Alleging that the first respondent has not taken care of the minor children, the appellant had filed O.P.No.112 of 2010 under Sections 3 and 7 to 10 of Guardian and Wards Act. Praying to appoint the appellant – the paternal grandmother as the guardian for the person and property of the minors – W.Alfred James and W.Mary Immaculate Christina in the said O.P., the appellant has also filed A.No.882 of 2010 seeking for a prohibitory order prohibiting the Chennai Port Trust/Garnishee from disbursing 2/3rd of the family pension for the benefit of the minors. 4. The first respondent is contesting the main petition. She has also resisted the application contending that she is the natural guardian and that she is entitled to the custody of the minor children and therefore there is no need to pay the pension amount to the minor children. 5. Upon consideration of the rival contentions and also considering the financial status of the family of the first respondent and the paternal grandmother, the learned single Judge declined to issue the pro-order prohibiting the garnishee from disbursing 2/3rd of the family pension for the benefit of the minors and dismissed the application. Being aggrieved by the dismissal of the application in A.No.882 of 2010, the appellant/paternal grandmother has preferred this appeal. 6. Learned counsel for the appellant submitted that the appellant is taking care of the minor children and that the boy is studying in Don Bosco Matriculation Higher Secondary School, Thirupathur, Vellore District and the girl is studying in St.Joseph Girls Higher Secondary School, Suramangalam, Salem. Learned counsel further submitted that the grandmother finds it difficult to pay the hostel fee, mess fee and also for meeting the educational expenses and medical care of the children. It was further submitted that the learned single Judge did not keep in view the claim of the minors towards the family pension would be available till their majority and the learned single Judge did not keep in view that the appellant has taken pains to educate and upbring the children. It was further submitted that the learned single Judge was not right in depriving the legitimate share of the children in getting the family pension. 7. We have heard Ms.D.Sujatha, learned counsel for the first respondent. It was further submitted that the learned single Judge was not right in depriving the legitimate share of the children in getting the family pension. 7. We have heard Ms.D.Sujatha, learned counsel for the first respondent. Learned counsel for the first respondent submitted that the first respondent is living with her father and that she is unemployed and that she is living only on the family pension. It was further submitted that the first respondent being the mother wants to take care of the children and she has been unjustly deprived of the custody of the children. 8. We do not propose to go into the merits in the main matter as to what would be the best interest of the children. Suffice it to note that as on date, the minor son is aged 15 years and that he is studying in Don Bosco Matriculation Higher Secondary School, Thirupathur, Vellore District and the girl is aged 13 years and she is studying in St.Joseph Girls Higher Secondary School, Suramangalam, Salem. From the memo filed by the appellant, it is seen that for the boy, every month, the mess bill is somewhere around Rs.1,300/- -Rs.2,000/- whereas for the girl, the amount is around Rs.1,000/-. Now, both the children are in the custody of the appellant, who is the paternal grandmother. When the children are presently in the custody of the appellant, she has to take care, support, educate and maintain the children. The Court is bound to order certain amount to be paid to the minor children from out of the pension amount payable in respect of the deceased employee C.Wilson. 9. In our considered view, the learned single Judge did not keep in view the essential needs of the children like food and clothing, educational expenses and health care. Learned counsel for the first respondent also fairly submitted that she is ready to pay some amount for the maintenance of the children. But the only objection raised by the first respondent is that she would directly pay to the school authorities towards the educational expenses and mess bill. From the submission of the learned counsel for the appellant, we find that there is some difficulty in directly paying the amounts to the schools where the children are studying. But the only objection raised by the first respondent is that she would directly pay to the school authorities towards the educational expenses and mess bill. From the submission of the learned counsel for the appellant, we find that there is some difficulty in directly paying the amounts to the schools where the children are studying. Without prejudice to the contention of both the appellant and the first respondent, it would be appropriate to direct the second respondent/garnishee to pay Rs.3,500/- per month to the appellant from out of the family pension amount payable in respect of the deceased employee. 10. The order of the learned single judge in A.No.882 of 2010 dated 07.09.2010 is modified and this appeal is partly allowed. No costs. 11. The second respondent-Port Trust is directed to pay a sum of Rs.3,500/- to the appellant from out of the family pension payable in respect of the deceased employee C.Wilson every month towards the maintenance of minor children viz.,W.Alfred James and W.Mary Immaculate Christina commencing from the month of February, 2011. 12. The above order is passed without prejudice to the contention of both parties in O.P.No.112 of 2010. Since the matter pertains to the welfare of the minor children, we request the learned single Judge to take up O.P.No.112 of 2010 at an early date.