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2012 DIGILAW 414 (HP)

Jaitri Devi v. Gulabi Devi

2012-07-31

V.K.AHUJA

body2012
JUDGMENT Justice V.K. Ahuja, J. (oral): This is a regular second appeal filed by the appellants under section 100 C.P.C against the judgment and decree, dated 12.1.2011, passed by the learned Additional District Judge, Fast Track Court, Chamba, vide which he dismissed the appeal filed by the appellants and upheld the judgment and decree of the Court of learned Civil Judge (Senior Division), Chamba, dated 12.4.2010. 2. Briefly stated, the facts of the case are that the respondent, hereinafter also referred to as plaintiff, filed a as against the appellants, hereinafter referred to as the defendants. The case set up by the plaintiff was that she is legally wedded wife of late Shri Kishan Lal, who retired as Deputy Ranger from the Forest Department. It was alleged that out of this wedlock, the deceased had four sons and one daughter, namely, Kartar Chand, Ravinder, Narender, Rajinder and Sarita. It was pleaded that the defendant No.1 was never married to deceased Kishan Lal and defendants No.2 to 4 were not born out of the said marriage relationship in between them and as such they were alleged be to not the legal heirs to the property and pensionary benefits of the deceased Kishan Lal. It was alleged that the defendants are claiming to be the legal heirs of late Kishan Lal before the authorities and also that they are not entitled to inherit the property of the deceased, hence the suit filed by the plaintiff. 3. Defendant No.1 set up the plea that she was the legally wedded wife of deceased and out of this wedlock, defendants No.2 to 4 were born and as such the plaintiff is not entitled to the relief claimed by her. 4. On the pleadings of the parties, the following issues were framed:1. Whether the plaintiff is only legally wedded wife of late Sh.Kishan Lal son of Ali Chand and Shri Kartar Chand, Ravinder Kumar, Narender and Rajinder are the sons and Smt.Sarita is the daughter of late Shri Kishan Lal as alleged? OPP2.Whether the defendant No.1 never married with Sh.Kishan Lal and defendants No.2 to 4 were not born out of wedlock of defendant No.1 and late Sh.Kishan Lal as alleged? OPP3. Whether the plaintiff and her children are only legal heirs of late Sh.Kishan Lal and entitled for a declaration to this effect? OPP 4. OPP2.Whether the defendant No.1 never married with Sh.Kishan Lal and defendants No.2 to 4 were not born out of wedlock of defendant No.1 and late Sh.Kishan Lal as alleged? OPP3. Whether the plaintiff and her children are only legal heirs of late Sh.Kishan Lal and entitled for a declaration to this effect? OPP 4. Whether the plaintiff is entitled for a relief of permanent prohibitory injunction restraining the defendants from claiming legal heirs of late Shri Kishan Lal? OPP 5.Whether the suit of the plaintiff is not maintainable in the present form? OPD6.Whether the plaintiff has got no cause of action and locus standi to file the present suit? OPD 7.Whether the suit of the plaintiff is bad for non- joinder of necessary parties? OPD 8.Relief.” 5. Parties led their evidence and the learned trial Court vide its impugned judgment and decree held that the plaintiff was the only legally wedded wife of the deceased and defendant No.1 was never married to the deceased and defendants No.2 to 4 were not born out of this wedlock of defendant No.1 and the deceased. The learned trial Court decreed the suit of the plaintiff. However, it was clarified that if under law illegitimate off-springs have any right of succession or service benefits, they will be entitled to claim such reliefs. An appeal was preferred by the appellants and the learned Additional District Judge, vide his impugned judgment and decree, dismissed the appeal filed by the defendants and affirmed the findings of the learned trial Court. Being aggrieved, the appellants have come up by way of the second appeal. 6. I have heard the learned counsel for both the parties and have gone through the record of the case. 7. In so far as the question that the plaintiff was the legally wedded wife of the deceased and four children were born from this wedlock is concerned, there are concurrent findings of both the courts below and as such the said mater is not in dispute. It was also held by both the courts that defendant No.1 was having long relationship with Kishan lal and defendants No.2 to 4 were the illegitimate children of defendant No.1 and late Shri Kishan Lal. It was also held by both the courts that defendant No.1 was having long relationship with Kishan lal and defendants No.2 to 4 were the illegitimate children of defendant No.1 and late Shri Kishan Lal. During the course of arguments, the learned counsel for the parties has confined their arguments to this extent as to whether defendants No.2 to 4 are entitled to pensionary benefits of deceased Kishan Lal or not. 8. My attention has been drawn to the decision of a Division Bench of this Court in Smt.Premi Devi versus Director of Directorate General Boarder and others, 2007(1) Shim.LC 311. This question was directly in issue before the Division Bench as to whether both the wives are entitled to the pensionary benefits or not. It was held by the Division Bench that the second wife legally has no status and cannot claim any share. However, the children born out of the wedlock of the second marriage are legitimate as per the provisions of Section 16 of the Hindu Marriage Act. It was finally concluded by the Division Bench that first wife and minor children of second wife would share family pension of the deceased to the extent of 50 : 50. The first wife is entitled for 50% of pensionary benefits and children of second wife are also entitled to the extent of 50%. 9. The above decision clearly applies to the facts of the present case and in view of the above discussion, the judgment and decree passed by the learned trial Court and affirmed by the learned Appellate Court is modified partly to this extent that defendants No.2 to 4 shall be entitled to pensionary benefits to the extent of 50%, while the plaintiff, who is the first wife of deceased Kishan Lal, will also be entitled for 50% of pensionary benefits. The pensionary benefits shall be available to defendants No.2 to 4 in accordance with Central Civil Services (Pension) Rules and shall be governed by those Rules only. On ceasing of the pensionary benefits to which defendants No.2 to 4 are held entitled to, the said benefits will also go back to the first wife as per the Central Civil Services (Pension) Rules, which shall be applied accordingly by the authorities. On ceasing of the pensionary benefits to which defendants No.2 to 4 are held entitled to, the said benefits will also go back to the first wife as per the Central Civil Services (Pension) Rules, which shall be applied accordingly by the authorities. The question of extent of family pension and death-cum-retirement gratuity shall be determined in favour of defendants No.2 to 4 in accordance with Central Civil Services (Pension) Rules. 10. Appeal stands partly allowed accordingly. However, the parties are left to bear their own costs.