IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 17863 of 2010(R) -------------------------- OS.73/2003 of FAMILY COURT,KOLLAM .................... PETITIONER(S): --------------- SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTH EAST CENTRAL RAILWAY, NAGPUR, MAHARASHTRA - 440 002. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENT(S): --------------- 1. SMT.ANJU.R, CHIRAKKADAVIL HOUSE, ADINADU NORTH.P.O, KARUNAGAPPALLY, KOLLAM DISTRICT, KERALA STATE - 690 542. 2. SMT. INDIRA BAI AMMA, W/O. GOPALAKRISHNA PILLAI, PANDARAVILA VEEDU, CHEMMAKKADUCHERI, PANAVAM VILLAGE, PERINADU.P.O, KOLLAM TALUK, KOLLAM DISTRICT KERALA STATE. ADDL.R3. ARATHY, D/O. ANJU, AGED 13 YEARS, CHIRAKKAL KADAVIL HOUSE, ADINADU NORTH P.O., KARUNAGAPPALLY - MINOR REPRESENTED BY HER ADOPTED MOTHER AND LEGAL GUARDIAN ANJU.R., D/O. RUGMINI AMMA, CHIRAKKAL KADAVIL HOUSE, ADINADU NORTH P.O., KARUNAGAPPALLY. IMPLEADED AS ADDITIONAL R3 VIDE ORDER DATED 4/10/10 IN I.A.NO.12392/10. ADV. SRI. K.SIJU FOR R1 SRI.A.MUHAMMED RAFFI FOR R1 SRI. K.SIJU FOR ADDL.R-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. ------------------------------------------------- W.P.(C) No. 17863 of 2010 ------------------------------------------------- Dated this the 28th day of October, 2010 JUDGMENT Basant,J. We appreciate that the petitioner/railways has come to this Court in their anxiety to protect the interests of a minor adopted child of a deceased railway employee. 2. We shall summarize the facts. Respondent No.1 herein is the divorced wife of a deceased railway employee by name Raveendran Pillai. Their matrimony was in doldrums. The 1st respondent had filed various cases against her deceased husband. There was a petition for divorce. There was a petition claiming maintenance. We are not really concerned with those two proceedings. Suffice it to say that we are W.P.(C) No. 17863 of 2010 -: 2 :- informed that long prior to the death of Raveendran Pillai on 11/10/06 the marriage with the 1st respondent stood dissolved by an order of court. 3. We are really concerned with a suit filed by the 1st respondent/divorced wife against Raveendran Pillai. That suit was filed claiming return of money, gold ornaments etc. The same was also decreed ex parte. On 15/4/05 an ex parte decree was passed directing Raveendran Pillai to pay a total amount of Rs.4,27,000/- along with interest and costs to the 1st respondent, his divorced wife. Subsequent to that decree dated 15/4/05, Raveendran Pillai expired on 11/10/06. The 1st respondent wanted the ex parte decree in her favour to be executed. She thereupon arrayed the mother of Raveendran Pillai i.e., the 2nd respondent and the adopted minor child of Raveendran Pillai (R3) as additional Judgment Debtors. In the E.P. Ext.P2 order was passed directing attachment of amounts payable consequent to the death of Raveendran Pillai to his legal heirs. 4. While that attachment was pending it appears that the parties settled their disputes. Exts.R1(e) and R1(f) were filed before the execution court. It was agreed by 1st and 2nd respondents that out of the amounts payable as terminal benefits in the account of late Raveendran Pillai an amount of W.P.(C) No. 17863 of 2010 -: 3 :- Rs.90,000/- can be released to the 2nd respondent and the entire balance amount can be released to the 1st respondent. The execution court accepted the said request. Accordingly, Ext.P4 order was passed directing release of Rs.90,000/- to the 2nd respondent and the entire balance amount to the 1st respondent. 5. The petitioner/railways felt righteous indignation and has come before this Court with this writ petition. The short grievance raised by the railways is that in the arrangement between 1st and 2nd respondents i.e., the divorced wife and the mother of the deceased Raveendran Pillai the interests of the additional 3rd respondent - adopted minor child has not been protected. That minor child is now aged 14 years (date of birth - 4/10/96). 6. The railways, the petitioner, laments that in Ext.R1(e) and R1(f) the interests of the minor/additional 3rd respondent have not been protected and provided for. According to the railways, the entire amount payable in the account of the deceased Raveendran Pillai is liable to be released to the additional 3rd respondent. The railways, in short, contends that Exts.R1(e) and R1(f) arrangement should not have been accepted by the court below. The entire amount may be ordered to be deposited/released in the name of the 3rd respondent and W.P.(C) No. 17863 of 2010 -: 4 :- adequate safeguards may be provided to protect the interests of the minor child. 7. This petition is opposed by the 1st respondent. The 2nd respondent, though served, has not come to Court. The learned counsel for the 1st respondent submits that, at any rate, additional 3rd respondent along with the 2nd respondent will be entitled for the amounts payable equally and the additional 3rd respondent will not be entitled to the amount entirely. Under the provisions of the Hindu Succession Act the mother and child are legal heirs entitled to equal rights. Of course, the 1st respondent - divorced wife, will not be a legal heir. In these circumstances though the railways/the petitioner contends that the entire amount is payable to the 3rd respondent, we agree with the learned counsel for the 1st respondent that half the amount shall be liable to be released to the 2nd respondent; whereas the remaining half alone is liable to be released to/deposited in the name of the additional 3rd respondent - minor. 8. The railways have now given details of the amounts payable. A total amount of Rs.3,88,484/- is payable in the account of the deceased Raveendran Pillai. The said amount has already been deposited before the Family Court as per the directions issued by this Court. The amounts are payable under W.P.(C) No. 17863 of 2010 -: 5 :- the following heads: “DCRG : Rs.2,71,082/- Provident Fund : Rs. 62,825/- Non-Gazetted Insurance Scheme : Rs. 39,584/- Leave Salary ; Rs. 14,993/- --------------------- TOTAL : Rs.3,88,484/- =========” 9. The learned counsel for the 1st respondent submits that the 1st respondent is as much interested in the welfare of the 3rd respondent as any one else. The 1st respondent readily agrees that half the above said amount of Rs.3,88,484/- i.e., Rs.1,94,242 can be retained in a Fixed Deposit account in the name of the minor and the same can be released to the minor on attainment of majority. The principal amount along with interest due can be so released to the minor on attainment of majority accepts and concedes the 1st respondent. 10. We now come to the balance amount of Rs.1,94,242/-. That amount is liable to be released to the second respondent. The second respondent with open eyes and conscious of the amounts that are payable to the first respondent in execution of the binding decree against the deceased had agreed that an amount of Rs.90,000/- alone be released to her and the entire W.P.(C) No. 17863 of 2010 -: 6 :- balance amount can be released to the first respondent, the decree holder. We do not think it necessary to go into the larger question as to what portion of the said amount of Rs.3,88,484/- is attachable. The second respondent having conceded that out of the amount due to her, only an amount of Rs.90,000/- need be released to her, we are satisfied that the entire balance amount can be ordered to be released to respondent No.1. The second respondent has already accepted this arrangement under Exts.R1(f) and R1(e). The first respondent now accepts this arrangement. The first respondent is the guardian/person in custody of her minor adopted child. She is not making any concession so far as the minor child is concerned also. 11. The learned counsel for the first respondent submits that family pension is liable to be paid to the additional third respondent. The learned counsel for the petitioner, Railways submits that the petitioner, Railways is willing to release the amount - arrears due as well as future installments to the additional third respondent, subject of course to compliance of the requisite formalities. The first respondent submits that as the guardian of the additional 3rd respondent (minor) she shall comply with all the requirements. The family pension amounts payable are not really the subject matter of this writ petition. W.P.(C) No. 17863 of 2010 -: 7 :- But in any case, we accept the submission of the learned counsel for the petitioner and the counsel for the first respondent about the entitlement of the additional third respondent, minor adopted daughter, for family pension payable in respect of the deceased employee. 12. We are, in these circumstances, satisfied that the objections of the petitioner/railways can be accepted and appropriate further directions can be issued. 13. In the result: (a) This Writ petition is allowed. (b) We accept that the petitioner has deposited before court the entire amount of Rs.3,88,484/- with the Railways in discharge of the liability shown above in the account of deceased Raveendran Pillai. (c) We further direct the Family Court to deposit an amount of Rs.1,94,242/- along with the share of interest that is now payable [consequent to the deposit by the Family Court in the fixed deposit account] in the name of the minor child with the first respondent as guardian in such a manner that the principal amount along with interest accrued shall be released to the minor child i.e., the additional third respondent on attainment of majority. The Fixed Deposit Receipt shall be retained by the W.P.(C) No. 17863 of 2010 -: 8 :- Family Court, the same shall be renewed from time to time and shall be released to the additional 3rd respondent on attainment of majority. (d) Out of the balance, an amount of Rs.90,000/- along with the proportionate interest that has now become due in the fixed deposit account shall be released to the second respondent by the Family Court. (e) The entire balance amount shall forthwith be released to the first respondent. Sd/- R. BASANT (Judge) Sd/- M.L. JOSEPH FRANCIS (Judge) Nan/ //true copy// P.S. to Judge