IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S. No.1251 of 2002 Dated:14-11-2011 Between: G.Radhika and others. ….Appellants. And Smt. Lakshmi Narsamma and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD A.S.No.1251 of 2002 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the judgment and decree passed in O.S.No.21 of 2000 by the Judge, Family Court, Secunderabad on 13.06.2002. The parties in the appeal are being referred to as mentioned in the suit before the lower Court. The appellants herein are the plaintiffs in the above said suit and they have filed the suit under Section 20 of Hindu Adoptions and Maintenance Act 1856 to declare the plaintiffs as legal representatives of late G.Ramanjaneyulu and also to direct the defendant No.2 and 3 to sanction the pension to the plaintiff Nos.1 and 2. According to the plaintiffs late Ramanjaneyulu married 3rd plaintiff on 13.11.1993 as per Hindu rites and customs. The said late Ramanjaneyulu had suppressed the factum of his marriage with 1st defendant while contacting marriage with the 3rd plaintiff. The 3rd plaintiff led marital life with late Ramanjaneyulu till his death and out of their wedlock; they blessed with plaintiff Nos.1 and 2. In the year 1991, 3rd plaintiff came to know that the said late Ramanjaneyulu married 1st defendant prior to her marriage and she raised disputes before elders and well-wishers and the elders decided that as no issues to 1st defendant and the 3rd plaintiff has got two children, asked 1st defendant to treat the children as her own daughters, for which the 1st defendant has agreed. Thereafter, due to petty quarrels between 1st defendant and 3rd plaintiff, 1st defendant left the house. The said Ramanjaneyulu worked up to 1995 and retired from service on 31.05.1995. He was getting pension after retirement till the date of his death. The 1st defendant never approached 3rd plaintiff or Ramanjaneyulu and she did not attend the funerals of late Ramanjaneyulu. The plaintiffs have got prima-facie case and balance of convenience in their favour to get the maintenance. Hence the suit. The 1st defendant filed written statement pleading that the plaintiffs have no manner of right or relationship with late Ramanjaneyulu and they are not entitled to claim any pension of Ramanjaneyulu. During the lifetime of Ramanjaneyulu, he never married any lady much less 3rd plaintiff. The 3rd plaintiff is a teacher in ZP school and drawing a salary of Rs.8,000/- and she has taken away the entire retirement benefits of Ramanjaneyulu and grabbed his house property illegally and now they are trying to grab the pension stating that they are the legal heirs of Ramanjaneyulu. The 1st defendant being the legally wedded wife of Ramanjaneyulu, she is entitled for pension. Hence, the suit is liable to be dismissed. The 3rd defendant has filed written statement pleading that he is only drawing and disbursing officer and pension will be disbursed as per the authorization of Accountant General. The Accountant General, Hyderabad has issued a family pension authorization in favour of 1st defendant and the same is being paid to her after the death of her husband. Hence the suit is liable to be dismissed. The 2nd defendant also filed written statement adopting the written statement of 3rd defendant. On the above pleadings, the lower Court has framed the following issues: 1) Whether the plaintiffs are entitled for declaration that they are the legal heirs of late G.Ramanjaneyulu (deceased)? 2) Whether the plaintiffs are entitled for the family pension of the deceased? 3) Whether the suit is not maintainable against the defendants 2 and 3? 4) To what relief. During the course of enquiry, 3rd plaintiff examined herself as P.W.1 and also examined her brother as P.W.2, plaintiffs 1 and 2 were examined as P.Ws.3 and 4 and got marked Exs.A.1 to A.10. On behalf of 1st defendant, she examined herself as D.W.1 and examined the sister of Ramanjaneyulu as D.W.2 and no documents were marked on behalf of defendants. Taking into consideration of the said oral and documentary evidence, the lower Court held issue Nos.1 and 2 against the plaintiffs and issue No.3 in favour of plaintiffs and thereby dismissed the suit. Aggrieved by the dismissal of the suit, the present appeal is filed by the plaintiffs therein. The appellants’ counsel has pleaded that the 3rd plaintiff is the 2nd wife of late Ramanjaneyulu and plaintiff Nos.1 and 2 were born to plaintiff No.3 through Ramanjaneyulu, even if the marriage of 3rd plaintiff with Ramanjaneyulu is void marriage, the plaintiff Nos.1 and 2 are illegitimate children and they are entitled to claim maintenance under Hindu Adoptions and Maintenance Act against 1st defendant, as such they are entitled for share in the pension drawn by 1st defendant. The 1st respondent’s counsel on the other hand has pleaded that as the suit filed under Hindu Adoptions and Maintenance Act, 1856 the plaintiffs are not entitled for declaration as prayed for. The 1st defendant being the legally wedded wife of Ramanjaneyulu, she is entitled for pension and the Accountant General has issued family pension authorization in favour of 1st defendant and she is drawing the same. Even if the plaintiff Nos.1 and 2 are illegitimate children of Ramanjaneyulu, they cannot claim any share in the pension of Ramanjaneyulu. P.W.1, who is the plaintiff No.3, in her chief-examination itself, has admitted that late Ramanjaneyulu was married to 1st defendant prior to her marriage. Therefore, the marriage of plaintiff No.3 with Ramanjaneyulu has taken place during the subsistence of marriage of Ramanjaneyulu with 1st defendant. Therefore, the lower Court has rightly held that the marriage of plaintiff No.3 with Ramanjaneyulu is void marriage as per Section 11 of Hindu Marriage Act. With regard to legitimacy of children i.e. plaintiff Nos.1 and 2, the lower Court has observed that the plaintiff Nos.1 and 2 have not produced any document to show that they were born to plaintiff No.3 through Ramanjaneyulu. The appellants’ counsel has pleaded that they have produced the birth certificates, bonafide certificates and also progress reports, which shows that Ramanjaneyulu is the father of plaintiff Nos.1 and 2. Even if the plaintiffs could able to establish that they were born to 3rd plaintiff through Ramanjaneyulu, since the marriage of 3rd plaintiff with Ramanjaneyulu is void marriage, the plaintiff Nos.1 and 2 are only illegitimate children of Ramanjaneyulu. Under Section 20 of Hindu Adoptions and Maintenance Act, they are entitled for the maintenance either from their father or mother or step mother, who has no children. In the present case, plaintiffs are not claiming any maintenance from 1st defendant, but they are claiming part of the pension drawn by 1st defendant and sought for a direction to defendant Nos.2 and 3 to sanction pension to them. Admittedly, 1st defendant is drawing family pension after the death of pensioner Ramanjaneyulu. She being the legally wedded wife of Ramanjaneyulu, she is entitled to draw the family pension. Even if the Ramanjaneyulu has got any children through 1st defendant, they are also not entitled to claim pension during the lifetime of their mother. In the present case, the plaintiff Nos.1 and 2 are illegitimate children of Ramanjaneyulu and during the lifetime of 1st defendant they cannot claim any share in the pension. Therefore, the plaintiffs are not entitled for declaration that they are legal heirs of Ramanjaneyulu in the present suit and also not entitled for a direction to 3rd defendant to pay pension of late Ramanjaneyulu to them. Hence, the lower Court has rightly dismissed the suit. We do not find any reason to interfere with the said findings recorded by the lower Court. In the result, the Appeal is dismissed without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:14 -11 -2011 Ksp