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2018 DIGILAW 3853 (MAD)

Susila v. G. Rio Mathukumar

2018-10-22

C.V.KARTHIKEYAN

body2018
JUDGMENT C.V. KARTHIKEYAN, J. 1. The first defendant, Susila, W/o., Late. R. Ganesan in O.S.No.130 of 2001 on the file of the Additional District Munsif Court, Tuticorin, is the appellant herein. 2. O.S.No.130 of 2001 had been filed by G. Rio Mathukumar, who was a minor at the time of filing of the suit, against the 1st defendant, Susila, against the 2nd defendant, the Regional Manager, Tamil Nadu Civil Supplies Corporation Ltd., Tuticorin, and against the 3rd defendant, the Chairman and Managing Director, Tamil Nadu Civil Supplies Corporation Limited, Chennai, seeking a judgment and decree to declare that the plaintiff is entitled to get 1/2 share in the death benefits of R. Ganesan, as his legal heir and also to pass an order of permanent injunction restraining the first defendant from receiving the plaintiff's 1/2 share in the death benefits of deceased R. Ganesan. 3. This suit came up for consideration before the learned Additional District Munsif, Tuticorin, who by judgment and decree dated 29.11.2002 decreed the suit. Challenging that judgment, the first defendant, Susila, filed A.S.No.1 of 2003 before the Subordinate Court, Tuticorin. The learned Subordinate Judge, Tuticorin, by judgment and decree dated 01.04.2004, dismissed the appeal and confirmed the judgment and decree in O.S.No.130 of 2001. Challenging that judgment and decree, the first defendant had filed the present second appeal. 4. The second appeal had been filed on the following substantial questions of law: "(a) Whether the findings of the Courts below are vitiated by erroneously relying upon Ex-A5, Ex-A6 to Ex-A21 which are inadmissible in evidence and the same will not establish the marriage? (b) Whether the Courts below is right in drawing the presumption of marriage on the basis of living together as husband and wife especially the presumption of 2nd marriage cannot be drawn? (c) Whether the Courts below is right in holding that the respondent is entitled to a share in the death benefits in the absence of any proof that he is the son of the deceased R. Ganesan?" O.S.No.130 of 2001 (Additional District Munsif Court, Tuticorin):- 5. The suit had been filed by G.Rio Mathukumar, who was a minor at the time of institution of the suit. He was represented by his next friend and mother Tmt. Pappa. He claimed that he was a son of R.Ganesan. He had filed the suit against Susila, who was described as the wife of R.Ganesan. The suit had been filed by G.Rio Mathukumar, who was a minor at the time of institution of the suit. He was represented by his next friend and mother Tmt. Pappa. He claimed that he was a son of R.Ganesan. He had filed the suit against Susila, who was described as the wife of R.Ganesan. It must be mentioned that R.Ganesan died on 14.12.2000. The said R.Ganesan was working in Tamil Nadu Civil Supplies Corporation in several branches at Tuticorin. 6. It had been stated that the mother of the plaintiff, Pappa was also working in Tamil Nadu Civil Supplies Corporation. It is claimed that she married R.Ganesan on 13.07.1986. It was also stated that R.Ganesan had earlier married the first defendant, Susila and that they had no issues. The plaintiff claims to be the son of R.Ganesan. He had instituted the suit seeking one half share in the death benefit of R.Ganesan, as his legal heir and also for consequential injunction restraining the first defendant from receiving his half share of the death benefit of R.Ganesan. 7. The first defendant filed her written statement, in which, she disputed that the mother of the plaintiff and R.Ganesan were actually married. She also disputed the averments that the plaintiff was born to R.Ganesan. It was stated that the suit had been filed only to usurp the entire benefits, which had accrued owing to the death of R.Ganesan. It had been stated that the suit is mischievous in nature and the suit should be dismissed. 8. The second defendant also filed written statement. It had been stated that in the Service Register, R.Ganesan had nominated the first defendant, Susila, who was described as his wife to receive gratuity and ECPF. It had also been stated that the Tahsildar, Ottapidaaram, had also issued legal heir certificate, in which the first defendant, Susila, was shown as the wife of R.Ganesan. It was stated that the suit should be dismissed. 9. On the basis of the above pleadings, the learned Additional District Munsif, Tuticorin, framed the following issues for trial: "(a) Whether the plaintiff is the legal heir of R.Ganesan? (b) Whether the plaintiff is entitled to 1/2 share in the death benefit of R.Ganesan? (c) Whether the plaintiff is entitled for the relief of permanent injunction restraining the first defendant from reviving the death benefit of his 1/2 share? (b) Whether the plaintiff is entitled to 1/2 share in the death benefit of R.Ganesan? (c) Whether the plaintiff is entitled for the relief of permanent injunction restraining the first defendant from reviving the death benefit of his 1/2 share? (d) To what other reliefs, the plaintiff is entitled to?" 10. During trial, the plaintiff's mother, Pappa was examined as PW-1. She also examined two other independent witnesses, P.Shanmugam and Tharmakannan as PW-2 and PW-3. The first defendant was examined as DW-1 and she examined two other witnesses, Palani and R.Nadarajan, as DW-2 and DW-3. The plaintiff marked Ex-A1 to Ex-A21. Ex-A3, dated 27.01.2001, is the Advocate notice issued by the plaintiff. Ex-A4, dated 30.01.2001 is the reply notice. Ex-A7, dated 05.12.1988 is the Birth Certificate mentioning the names of R.Ganesan and Pappa. Ex-A11, Ex-A12, Ex-A13 and Ex-A14 are the Bank Account and benefit fund account of Pappa. Ex-A15 is the voter ID of Pappa. Ex-A17 is driving licence of Pappa. Ex-A18 and Ex-A19 are the photographs and negatives of Pappa and R.Ganesan. On the side of the defendants, Ex-B1 to Ex-B15 were marked. Ex-B1 is the death certificate of R.Ganesan. Ex-B2 is the voter ID Card of R.Ganesan. Ex-B3 is the insurance policy in the name of R.Ganesan. Ex-B8 is the legal heir certificate of R.Ganesan. Ex-B9 is the order passed by the employer of R.Ganesan. Ex-B14 is the Service Register of R.Ganesan. 11. On the basis of the oral and documentary evidence, the learned Additional District Munsif, Tuticorin, found that there was a reasonable probability that the plaintiff was born to R.Ganesan and Pappa. He relied on the documentary and oral evidence produced. In Ex-A1, the ration card, the names of both R.Ganesan and Pappa and also the name of the plaintiff was found. The photo of R.Ganesan had been affixed in the ration card. R.Ganesan had been shown as the head of the family. Ex-A6 is the form given by Ganesan to Infant Jesus Nursery School, wherein, the name of the father of the plaintiff was shown as R.Ganesan. Ex-A7 is the birth certificate of the plaintiff, wherein, it is shown that a male child had been born to R.Ganesan and Pappa. Ex-A9 is the House Warming Invitation showing the name of both R.Ganesan and Pappa. Ex-A7 is the birth certificate of the plaintiff, wherein, it is shown that a male child had been born to R.Ganesan and Pappa. Ex-A9 is the House Warming Invitation showing the name of both R.Ganesan and Pappa. In Ex-A10, Ex-A11, Ex-A12, Ex-A13 and Ex-A14, which are the bank accounts/benefit fund accounts of Pappa, she had been shown as wife of R.Ganesan. In Ex.A15, the voter ID card of Pappa, the name of her husband has been given as R.Ganesan. In Ex-A17 and Ex-A20, driving licence of Pappa, her husband's name has been given as R.Ganesan. Ex-A5, which is the sale deed in the name of Pappa, her husband's name is given as R.Ganesan. Similarly, in Ex-A16, which is an agreement relating to a common wall in the property, she has been described as wife of R.Ganesan. 12. Placing reliance on these documents, the Additional District Munsif held that the plaintiff was born to R.Ganesan and Pappa and consequently, held that the plaintiff was entitled to 1/2 share in the death benefits of R.Ganesan. He also granted injunction against the first defendant restraining her from withdrawing the 1/2 share of the plaintiff. A.S.No.1 of 2003:- 13. Challenging the above judgment and decree, the first defendant had filed the appeal in A.S.No.1 of 2003, which came up for consideration before the Additional Subordinate Court, Tuticorin. The learned Additional Subordinate Judge re-appraised the evidence on record and framed points for determination. The learned Judge held that the plaintiff is the legal heir of R.Ganesan. He was stated that as a legal heir, the plaintiff entitled to 1/2 share in the death benefits of R.Ganesan and consequently, dismissed the appeal. S.A.(MD)No.1194 of 2005:- 14. The unsuccessful first defendant in both the Courts below is the appellant herein. She was the first wife of R.Ganesan. They had no issues. R.Ganesan was employed in Tamil Nadu Civil Supplies Corporation Limited. The mother of the plaintiff, by name Pappa was also employed in Tamil Nadu Civil Supplies Corporation Limited. The suit had been filed by the plaintiff seeking 1/2 share in the death benefit of R.Ganesan, who died on 14.12.2000. Both the Courts below granted the relief sought by the plaintiff. 15. I hold that the Courts below were correct in relying upon the documents filed by the plaintiff. The issue narrows down to the entitlement of the plaintiff rather to the status of his mother, Pappa. Both the Courts below granted the relief sought by the plaintiff. 15. I hold that the Courts below were correct in relying upon the documents filed by the plaintiff. The issue narrows down to the entitlement of the plaintiff rather to the status of his mother, Pappa. It is a fact that the Pappa cannot be termed her as wife of R.Ganesan, since the marriage with the first defendant was still subsisting. However, the school joining certificate has described R.Ganesan as the father of the plaintiff. This one document is sufficient to hold in favour of the plaintiff. Consequently, with respect to the substantial question of law, I hold that the marriage between Pappa and R.Ganesan cannot be recognized and cannot be termed as legal. However, the son born to them cannot be denied any share in the death benefit of his father, R.Ganesan. The Courts below were right in drawing a presumption relating to paternity of the plaintiff. 16. This Court wanted a report to be filed by the 2nd and 3rd defendants in the suit with respect to the amounts available and the amounts disbursed to the first defendant. Accordingly, it was mentioned that 50% of the death benefits which comes around 2,53,849/- had been paid to the first defendant. The balance amount is retained by the 2nd and 3rd defendants. A direction is given to them that the said amount is to be disbursed within a period of four weeks to the plaintiff, G.Rio Mathukumar. Insofar as family pension is concerned, the said amount has to be paid only to the first defendant. It is stated that unpaid family pension has accrued from 15.12.2000 to 31.08.2018 to a sum of Rs. 3,71,992/-. A direction is given to the 2nd and 3rd defendants that it should be disbursed within a period of four weeks to the 1st defendant, Susila. Further direction is issued to the 2nd and 3rd defendants to pay the monthly pension of Rs. 1,755/- to the 1st defendant from the month of September'2018 onwards together with any increase in the pension every month in accordance with rule. The amounts mentioned should be disbursed within a period of four weeks from this judgment. Consequently, even though the second appeal is dismissed, the following directions are issued: (a) A sum of Rs. 1,755/- to the 1st defendant from the month of September'2018 onwards together with any increase in the pension every month in accordance with rule. The amounts mentioned should be disbursed within a period of four weeks from this judgment. Consequently, even though the second appeal is dismissed, the following directions are issued: (a) A sum of Rs. 2,53,849/- (50% of the death benefit) has to be paid by the 2nd and 3rd defendants to the 1st plaintiff, G.Rio Mathukumar within a period of four weeks from the date of this judgment; (b) The 2nd and 3rd defendants are directed to disburse the unpaid family pension from 15.12.2000 to 31.08.2018 to a sum of Rs. 3,71,992/- within a period of four weeks to the 1st defendant, Susila. (d) Further direction is issued to the 2nd and 3rd defendants to pay the monthly pension of Rs. 1,755/- to the 1st defendant every month from the month of September 2018 onwards together with any increase in the pension, in accordance with rules. 17. The second appeal is dismissed. However, without costs. The judgment and decree of the learned Subordinate Judge, Tuticorin, in A.S.No.1 of 2003, dated 01.04.2004 is confirmed. The judgment and decree passed by the learned Additional District Munsif, Tuticorin, in O.S.No.130 of 2001, dated 29.11.2002, is also confirmed.