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Andhra Pradesh High Court
C.Y. SOMAYAJULU , J.
G. Bharathi and others - Appellants
Vs.
G. Prameela and others - Respondents
C.M.A.No.1130 OF 2006 AND A.S.No.15 OF 2007
Decided on: 11-09-2007
(B) Hindu Marriage Act 1955-Section 16-Children of void marriage legitimate children and would be entitled to share in family pension, death-cum-retirement benefits and gratuity payable to deceased employee. [Para 16]
(C) Tirumala Tirupati Devasthanam Employees Service Rules 1989, Rule 4- Death-cum-Retirement benefits-Government servant does not have testamentary disposition in relation to gratuity payable to him contrary to service and pension Rules- [Para 15]
(D) A.P. revised Pension Rules 1980, Rules 49, 46(5), 47 and 48- A Government servant can, on his appointment , make a nomination in favour of a person to receive the death-cum-retirement benefits payable under Rule 47, and such nomination shall not be in favour of any person other than members of his family. Question of the defendant nominating the first plaintiff to receive the death-cum-retirement benefits does not arise. Appeal dismissed. [Para 15]
2007(3) ALD 508-Relied.
(E) Succession Act 1925, Section 63-Will- Proof of Execution - When deceased himself admitted execution of Will and he himself had in fact producted that Will before employer Court not erred in disbelieving Will in favour of plaintiffs. [Para 13]
(F) Hindu Law- Customary divorce- Marriage during subsistence of first marriage is void-Status of children from void marriage-No reliable evidence on record relating to customary divorce-Even assuming that factum of deceased and 1st plaintiff living together entails a presumption of their being husband and wife, such presumption would be only for purpose of legitimizing their children. [Para 14]
(G) Hindu Marriage Act 1955, Sections 16 and 17- Void Marriage solemnized during subsistence of first marriage. First defendant does not attain the status of the wife of the deceased. Even assuming that the factum of the deceased and the first plaintiff living together entails a presumption of their being husband and wife. Status of the first plaintiff can only be that of a concubine, but not the wife of deceased. Since a concubine cannot be elevated to the status of a wife, first plaintiff cannot be treated as the wife of the deceased. [Para 14]
(H) Civil Procedure Code 1908-Order 12 Rule 8, Order 41 Rule 27- Additional evidence, failure to produce is not a ground to draw adverse inference. Even if the document is produced in response to a notice under Rule 8 of Order 12 CPC issued during the pendency of an appeal, that document cannot be taken into consideration for deciding the appeal unless it is brought on record as evidence by taking recourse to Rule 27 Order 41 CPC. [Para 13]
(I) Service Law- Compassionate appointments-Persons eligible as per scheme alone can be considered and given appointment on compassionate grounds, which cannot be claimed as a matter of right-No direction to appoint a particular member of family of deceased person can be given by Court-Children born through void marriage, being members of family of deceased, can be considered for appointment on compassionate ground as per Rules governing such appointment. [Para 18]
(J) Succession Act 1925-Section 213- Petition for grant of probate-Neither parties to petition nor deceased, a resident of area comprised in original civil jurisdiction of High Courts of Calcutta, Madras or Bombay-Property in respect of which probate sought is also not within original civil jurisdiction of those Courts-Question of granting probate does not arise.[Para 19]
(K) Succession Act 1925- Section 213- A.P. Court Fees and Suit Valuation Act 1956-Probate petition- Court fee payable for probate is less than Court fee payable for a succession certificate-Court while ordering grant of succession certificate should direct petitioner to deposit necessary court fee required for such certificate. [Para 19]
(L) Succession Act 1925- Section 383(3)-Succession Certificate- Decree of a Civil Court overrides succession certificate Issuance of succession certificate would be redundant and unnecessary on decree or order in a suit or other proceeding [Para 20]
1. Since these two proceedings arise out of a common judgment passed in a suit and a petition for probate of a Will, they are being disposed of by a common judgment.
2. For the sake of convenience, I will refer to the parties as they are arrayed in O.S.No.4 of 2001, out of which A.S.No.15 of 2007 arises.
3. Plaintiffs filed the aforesaid suit seeking a declaration that they alone are entitled to the death-cum-retirement benefits of G. Sreenivasulu (the deceased) and also the amounts detailed in the plaint schedule, and for a decree of permanent injunction restraining defendants 1 to 3 from recovering the death- cum-retirement benefits of the deceased, inter alia alleging that the deceased married the first plaintiff about 27 years prior to the suit as per sastric rites and begot plaintiffs 2 and 3 out of the wedlock, but subsequently, it came to light that the deceased married the first defendant and gave birth to defendants 2 and 3 and had deserted the first defendant about 28 years back, after giving customary divorce to her as per the caste custom and married the first plaintiff and lived with her till his death on 02.12.1999. The deceased, who was working as a driver in the fourth defendant devasthanam, nominated the plaintiffs as the persons entitled to the death-cum-retirement benefits in his Service Register. As the deceased had on 15.02.1999 executed a Will in a sound disposing state of mind bequeathing the death-cum-retirement benefits to the plaintiffs, they informed the Executive Officer of the fourth defendant Devasthanam to release the death-cum-retirement benefits of the deceased to them, whereupon, he directed the plaintiffs to obtain a succession certificate to enable him to take further action. They filed the suit because the defendants are making efforts to recover the death-cum-retirement benefits of the deceased.
4. First defendant filed her written statement, which was adopted by defendants 2 and 3, contending that the deceased married the first defendant about 35 years prior to his death at Thiruchanoor and begot defendants 2 and 3 out of the wedlock. They i.e. the first defendant and the deceased lived happily for seven years. Subsequently, as their relationship got strained, first defendant filed M.C.No.16 of 1990 seeking maintenance from the deceased, which ended in a compromise. As the deceased executed a Will on 24.09.1999, in a sound disposing state of mind, bequeathing all the benefits due to him from the fourth respondent devasthanam to the defendants, plaintiffs have no right over the death-cum-retirement benefits of the deceased.
5. The Executive Officer of the fourth respondent devasthnam filed the written statement inter alia contending that an amount of Rs.2,000/- was paid for performing obsequies of the deceased. The first defendant, as per the Service Register of the deceased, was his wife. But later the name of the first defendant stood corrected as G. Bharathi i.e. first plaintiff, without any proper attestation by any competent authority. The deceased produced an order in M.C.No.16 of 1990, dated 15.5.1993 whereunder he was directed to pay Rs.4,000/- per month to the first defendant towards her maintenance and had also submitted a registered Will dated 15.02.1999 in which he nominated the first plaintiff to receive the pensionary benefits along with her sons. Even then, the plaintiffs were directed to produce a succession certificate for paying the death-cum- retirement benefits of the deceased to them.
6. Basing on the above pleadings, the trial Court framed the following issues for trial:
(1) Whether the plaintiffs are entitled to the death cum retirement benefits and also amounts mentioned in the plaint schedule?
(2) Whether the plaintiffs are entitled to permanent injunction? (3) To what relief?
7. Defendants filed O.P.No.219 of 2001 under Section 276 of the Succession Act, for probating the will dated 24.09.1999 executed by the deceased, in which the
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