THE HON’BLE SRI JUSTICE R.KANTHA RAO Dated this the 4th day of November, 2009. C.M.A.No. 4251 of 2003. Between: 1.Lakshmamma @ C.Lakkshamma and 2 others. …….Appellants. vs. 1.Ademma and another. …….Respondents. THE HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A.No. 4251 of 2003. JUDGEMENT: This appeal is filed against the Judgement passed by the III Additional District Judge, Tirupathi in SOP.No. 38 of 2000 dt. 21.10.2003. The petitioners before the Learned District are the appellants herein. They filed O.P. against the respondents under Section 372 of the Indian Succession Act seeking to grant Succession Certificate in their favour to enable them to get the death benefits of late Chemuru Venkateshwarlu, who died while working as an employee in APSRTC. Before the learned Court below, the 1st appellant claimed to be the legally wedded wife and the appellants 2 and 3 claimed to be the legitimate son and daughter of the deceased Ch.Venkateshwarlu, who was working as Hammer man in APSRTC, Satyavedu, Chittoor District. Initially, the appellants approached the APSRTC authorities to pay the death benefits to them claiming to be the legal representatives of the deceased Ch.Venkateshwarlu. But as there was rival claim by the 1st respondent, who claimed herself to be the legally wedded wife of the deceased Ch.Venkateshwarlu, the authorities of the APSRTC, directed the appellants to approach a competent civil court and to obtained Succession Certificate and on that they filed the O.P. before the Court below. The petition was stoutly opposed by the 1st respondent Ademma contending that her marriage with the deceased Ch.Venkateshwarlu @ Boppaiah was performed at Yanamalapalem village as per caste custom and Hindu rites. The deceased was working as a Hammer man in APSRTC. Out their lawful wedlock, a daughter and son were born to them and the daughter by name Kanthamma died subsequently due to illness. It is the main contention of the 1st respondent that the 1st appellant- Lakshmamma is the wife of one Bangla Chengaiah @ Nadipaiah, a resident of Pudi Harijanawada and their names were so enrolled in the voters’ list also. According to the 1st respondent, the appellants are no way related to the deceased Ch.Venkateshwarlu and they filed the petition on false grounds to knock away the death benefits of the deceased. In the course of enquiry, before the learned III Additional District Judge, Pws 1 to 7 were examined and Exs:A.1 to A.16 and Exs: X.1 and X.2 were marked on behalf of the appellants, whereas RWs 1 to 3 were examined and Exs: B.1 to B.5 were marked on behalf of the respondents. Pw.3 is an employee in Srikalahasthi APSRTC depot. He claims to have attended the marriage of the 1st appellant and the deceased Ch.Venkateshwarlu, which was performed in the year 1966. Pw.4 is a relative of the 1st appellant and the 1st appellant is his paternal Aunt. He also stated before the Court below that the marriage of 1st appellant with the deceased Ch.Venkateshwarlu took place in 1966 at Padmavathi temple in Tiruchanoor. Despite the fact that the 1st appellant herself did not furnish the date of her marriage, Pw.4 stated in his evidence that the marriage was solemnized on 10.3.1966. On the other hand, the respondent apart from examining herself as RW.1, examined C.Jayaramaiah the brother of the deceased as RW.2. He categorically stated in his deposition that the 1st respondent is the legally wedded wife of the deceased Ch.Venkateshwarlu and the 1st appellant is the wife of one Bangla Chengaiah. The 1st respondent also examined RW.3 and also produced voters’ list of Puttur Assembly Constituency. It is the specific evidence of Rw.2 that his deceased brother Ch.Venkateshwarlu never married the 1st appellant and they never lived as man and wife and their family members also do not know about the 1st appellant till the death of their brother Venkateshwarlu. As regards the oral testimony of the witnesses, the learned Court below relied on the evidence of Rw.2 who is no other than the brother of the deceased. As rightly held by the court below, none of the close relatives of the deceased were examined by the appellants. Rw.2 who is no other than the brother of the deceased Ch.Venkateshwarlu is not expected to give false evidence to the effect that the 1st respondent is the wife of the deceased Ch.Venkateshwarlu unless in fact she is the real wife of the deceased. Another important factor which weighed with the learned Court below is that from the beginning it has been the specific contention of the 1st respondent that the 1st appellant is the wife of one Bangla Chengaiah @ Nadipaiah of Pudi Harijanawada and Rw.1 specifically deposed in her evidence that the 1st appellant begot the appellants 2 and 3 and another son by name Chengaiah through Bangla Chengaiah. Though the 1st appellant denied the said allegation in the course of her evidence, she did not adduce any evidence to disprove the said fact. Rw.3 also stated in his evidence that the 1st appellant is not the wife of the deceased Ch.Venkateshwarlu but she is the wife of one Bangla Chengaiah and got two sons viz., Chengaiah and Subramanyam and Chengaiah is now the elder of Pudi village. It is pertinent to note that the 1st appellant produced her Service Register Ex:X.2 for the purpose of showing that the deceased Ch.Venkateshwarlu is her husband. In Ex:X.2 at page 11 she gave a declaration on 7.2.1991 showing her nominees for the Staff Benevolent Fund and the nomination shows the names of the appellants 2 and 3 and also the name of one C.Chengaiah. According to the declaration furnished by her all the three persons are her children. Therefore, as rightly held by the learned Court below the 1st appellant in fact having another son by name C.Chengaiah apart from the appellants 2 and 3. The said fact was flatly denied by the 1st appellant and her conduct certainly throws any amount of doubt regarding genuineness of her version. Another important document is the voters’ list Ex:B.3 of Puttur Assembly Constituency produced by the 1st respondent. At S.No. 286 of Ex:B.3, the name of the 1st appellant is referred as B.Lakshmamma W/o: Chengaiah, which goes contra to her basic version that she is the wife of the deceased Ch.Venkateshwarlu. Ex:B.5 is another voters’ list. At S.No. 403 in Ex: B.5, the name of B.Chengaiah S/o: Nadipaiah is mentioned. B.Lakshmamma is shown as the wife of B.Chengaiah. From these voters’ lists, it is clear that the 1st appellant is the wife of B.Chengaiah S/o: Nadipaiah. Further more, Ex:A.16 the Service Register of late Ch.Venkateshwarlu shows that he joined the service on 31.7.1975. According to the 1st appellant, her marriage with the deceased Venkateshwarlu took place in the year 1966. If that is so, the deceased Ch.Venkateshwarlu must have mentioned the name of the 1st appellant as his wife soon after the opening of the Service Register but only in 1991in his Service Register Ex:A.16, the deceased Venkateshwarlu gave a declaration for Employees Provident Fund showing the 1st appellant as his wife. The 1st appellant also produced before the trial court her Service Register Ex:X.2 through Pw.7. In the said Service Register, her husband’s name is not mentioned but her father’s name is mentioned as Subbaiah. Her first appointment was on 29.9.1997 as per Ex:X.2. If really her marriage with the deceased Venkateshwarlu took place in 1966 she would have certainly mentioned in Ex:X.2 that she is the wife of the deceased Venkateshwarlu instead of mentioning as the daughter of Subbaiah. It has been the consistent and specific contention of the 1st respondent that the appellants 2 and 3 and Chengaiah were born to 1st appellant through Bangla Chengaiah. The said fact was denied by the 1st appellant but in the declaration furnished by her in Ex:X.2 on 7.2.1991she mentioned the name of Chengaiah as her son along with the names of the appellants 2 and 3. It is the contention of the 1st respondent is that as her son Chengaiah did not consent for making a false claim, she withheld him from being examined before the court as a witness on her behalf. Therefore, from the non-examination of Chengaiah the alleged son of the 1st appellant in the given situation enables the court to draw an adverse inference against the case of the appellants that had the said Chengaiah been examined, he would not have at all supported the case of the appellants. For all the above mentioned reasons, I am of the opinion that the trial court, basing on the facts and evidence and having regard to the nature and circumstances of the case, has rightly arrived at a conclusion that the respondents are the legal representatives of the deceased Ch.Venkateshwarlu. In so far as the nomination in favour of the appellants is concerned, the Hon’ble Supreme Court in G.L.Bhatia vs. Union of India [ (1999) 5 Supreme Court Cases 237] held that though nomination made by Government Servant excludes the name of the wife, such nomination does not take away her right of being entitled to the benefit of Family Pension in terms of the rules. Thus, in the instant case also since the respondents are considered to be the legal representatives of the deceased Venkateshwarlu, the nomination even if it is believed to be made by him during his life time in his Service Register, such nomination does not take away the right of the respondents to claim the death benefits of the deceased employee Ch.Venkateshwarlu. Thus, the order passed by the trial court does not require any interference in this appeal. In the result, the appeal is dismissed with costs. _________________ R.KANTHA RAO.J 4.11.2009. Krb. THE HON’BLE SRI JUSTICE R.KANTHA RAO C.M.A. No. 4251 of 2003. Dated: 4.11.2009.