The legal status of children born from a void marriage and their entitlement to share in the deceased employee's benefits under the relevant pension rules.

1. The present second appeal has been directed against the Judgment and Decree dated 22.02.2005 passed by the learned Principal District Judge, Dharmapuri at Krishangiri in A.S.No.31 of 2003 in and by which the Judgment and Decree dated 14.1.2003 passed by the learned Subordinate Judge, Krishnagiri in O.S.No.190 of 1997 has been reversed.

2. The brief facts which lead to file the second appeal are as follows:

(i) The suit was filed by the first wife and her children for partition of the scheduled mentioned properties into two equal shares and to allot one such share to the plaintiffs and to further direct the defendants 5 to 7/respondents 5 to 7 to pay half share of the surrender salary, family pension and the other benefits payable to late Subramani to the plaintiffs and for permanent injunction to restrain the defendants 5 to 7/respondents 5 to 7 from disbursing the amounts to the defendants 1 to 4/respondents 1 to 4.

(ii) The first plaintiff, Poongavanam is the second wife of late P. Subramaniam, who worked as Line Inspector in Tamil Nadu Electricity Board at Mathur. The plaintiffs 2 to 5 are the children born out of the marriage took place between the first plaintiff and the deceased Government servant, late Subramani. The defendants 5 to 7 namely the Tamil Nadu Electricity Board are arrayed as parties to sanction all the benefits of late P.Subrmani, namely the surrender salary, DCRG, family pension and the other benefits payable to late Subramani upon his death. It was submitted before the Courts below that the plaintiffs 2 to 5 are sons and daughters born out of the marriage took place between the first plaintiff (second wife) and the deceased Government (late Subramani) and therefore another prayer was also sought for to allot 1/8 share in all the amounts mentioned in the plaint. The trial Court after proper enquiry, decreed the suit as prayed for.

(iii) Aggrieved by the said judgment passed by the learned Subordinate Judge, Krishnagiri, an appeal in A.S.No.31 of 2003 was preferred by the defendants 1 to 4 viz., the first wife/Thangamani/first defendant and her children on the ground that the marriage never took place between the first plaintiff/Poongavanam and the deceased P.Subramani, who was a Government Servant, hence, the judgment and decree passed by the Trial Court granting 1/2 share to the plaintiffs 2 to 5 cannot be accepted and the same has to be set aside.

(iv) The learned first appellate Court in its finding stated that the marriage took place between the first plaintiff and the deceased P.Subramani, who was Government servant is not valid, but the children born out between them are the valid legal heirs and hence, it confirmed the judgment and decree passed by the trial Court by accepting to enjoy 1/8 share in respect of item Nos.1 to 4 i.e Family Benefit Fund, D.C.R.G, Provident Fund and Leave Salary by the plaintiffs 2 to 5 and the defendants 1 to 4 and in respect of the fifth item i.e. the Family Pension is concerned, it reversed the finding of the trial Court stating that the first defendant is entitled to get pension as she alone was a legally wedded wife. As far as the share of the schedule mentioned property is concerned, the appellate Court confirmed the judgment and decree passed by the trial Court holding that the plaintiffs 2 to 5 and the defendants 1 to 4 are entitled to 1/8th share. Against the said judgment, the second appeal has been filed.

3. Heard Mr.Shivaraman, learned Senior Counsel appearing for the appellants and Mr.M.Govindaraj, learned counsel appearing for respondents 1 to 4 and Mr.V.Viswanathan, learned standing counsel appearing for the respondent Electricity Board 5 to 7.

4. At the time of admission of the above second appeal, the following substantial questions of law were framed.

i) When Rule 49(7)(a)(i) says that the family pension shall be paid to widows in equal shares and when Rule 49(7)(b) clearly says that where the deceased Government servant or pensioner is