IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:08.04.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.331 and 332 of 2011 and M.P.Nos.1 and 1 of 2011 Krishnaveni Ammal .. Appellant in both appeals/Plaintiff vs. 1. Poongavana Ammal 2. The Panchayat Union Middle School, Mazhavanthangal, Gingee Taluk Garnishee by Assistant Educational Officer Gingee. 3. Elangovan 4. Sengotuvan 5. Pandiyan 6. Karikalan 7. Rajalakshmi .. Respondents in S.A.No.331/2011/ No notice need be sent to Defendants 2 to 7 Respondents 3 to 7 Poongavana Ammal .. Respondent in S.A.No.332/2011/ Defendant These second appeals are focussed as against the common judgment and decrees dated 29.07.2010 in A.S.Nos.80 and 84 of 2005 on the file of the learned Subordinate Judge, Gingee, reversing the judgment and decrees dated 29.06.2004 passed in O.S.Nos.568 of 1993 and 148 of 1995 on the file of the learned Additional District Munsif, Gingee. For Appellant (In both appeals) : Mr.V.Bhiman For R1 in S.A.No.332/2011 & For respondent in S.A.No.331/2011 : Mr.P.Srinivas J U D G M E N T These two second appeals are focussed by the original plaintiff, animadverting upon the common judgement and decrees dated 29.07.2010 passed in A.S.Nos.80 and 84 of 2005 by the learned Subordinate Judge, Gingee, reversing the judgment and decrees of the learned Additional District Munsif, Gingee in O.S.Nos.568 of 1993 and 148 of 1995. The https://hcservices.ecourts.gov.in/hcservices/ parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. A recapitulation and re'sume' of the relevant facts absolutely necessary and germane for the disposal of these two Second Appeals would run thus: (a) The plaintiff in O.S.No.568 of 1993 filed the suit seeking the following reliefs: (i) To declare the nomination of the 2nd defendant as the beneficiary by the first defendant to his retirement benefits as illegal and contrary to rules; (ii) To restrain the defendants by means of permanent injunction from giving effect to and acting upon such illegal nomination; and (iii) for costs. (Extracted as such) (b) The same plaintiff filed O.S.No.148 of 1995 seeking the following reliefs: (i) To pass an order of permanent injunction restraining the defendant, her men and agents from interfering with the plaintiff's peaceful possession and enjoyment of the suit properties; and (ii) for costs. (Extracted as such) (c) Poongavana Ammal/D2 in O.S.No.568 of 1993 and the sole defendant in O.S.No.148 of 1995, filed separate written statements resisting the suit. (d) Whereupon the trial Court framed the issues. (e) During joint trial, the plaintiff-Krishnaveni Ammal examined herself as P.W.1 along with P.W.2-Balaraman and Exs.A1 to A5 were marked. On the side of the defendants, D.W.1 to D.W.6 were examined and Exs.B1 to B123 were marked. (f) Ultimately the trial Court decreed the suit O.S.No.568 of 1993 in favour of the plaintiff, however, partly decreed the suit in O.S.No.148 of 1995. Being aggrieved by and dissatisfied with the common judgment and decrees of the trial Court, the said Poongavana Ammal filed two appeals and the plaintiff-Krishnaveni Ammal filed one Cross Appeal as against the dismissal of part of her claim in O.S.No.148 of 1995. The appellate Court after hearing both sides, allowed both the appeals of Poongavana Ammal and dismissed the cross appeal. 3. Challenging and impugning the common judgment and decrees of the first appellate Court, these two Second Appeals have been filed more or less on same grounds and also suggesting the following substantial questions of law: https://hcservices.ecourts.gov.in/hcservices/ IN A.S.NO.331 OF 2011: "(1) Whether the lower appellate Court is right in reversing the well considered of the judgment of Trial Court. (2) Whether the lower appellate Court is right in holding that desertion of a spouse will disentitle the grant of pension and other benefits. (3) Whether the cancellation of nomination by the husband in the Service Register without notice to the other side who was alive is valid in law. (4) Whether the concubine is entitled for pension and other benefits when the legally wedded wife is alive to receive the same. (5) In the absence of any Rule whether the reasoning of the Lower Appellate Court that continuous cohabitation is necessary for grant of pension is right. " (extracted as such) IN A.S.NO.332 OF 2011: "(1) Whether the lower appellate Court is right in dismissing the appeal with regard to the suit items 1,4,5 when the defendant had not raised any objection over the same. (2) Whether the Lower Appellate Court is right in dismissing the appeal holding that the plaintiff had to file a suit for declaration instead of bare injunction. (3) Whether Lower Appellate Court was right in dismissing the appal when the marriage between the Damodhara Gounder and the defendant has not been proved. (4) Whether the lower appellate Court is right in reversing the decree and judgment of the trial Court without observing as to who is in actual possession of the property." (extracted as such) 4 Heard both sides. https://hcservices.ecourts.gov.in/hcservices/ 5. After hearing both sides, I have been of the considered view that the following substantial questions of law have to be framed in respect of S.A.No.331 of 2011 [O.S.No.568 of 1993]: (1) Whether the first appellate Court was justified in vaguely placing reliance on G.O.Ms.No.690 and deciding the lis, without taking into account Rule 49 of the Tamil Nadu Pension Rules, 1978? (2) Whether the first appellate Court was justified in ignoring the respective rights of Krishnaveni Ammal, the plaintiff and her children and also the children born to Poongavana Ammal through Dhamodhara Gounder? (3) Whether there is any perversity or illegality in the common judgment and decrees passed by the first appellate Court? 6. The substantial questions of law which had arisen in respect of S.A.No.332 of 2011 [O.S.No.148 of 1995] would run thus: (1) Whether the first appellate Court was justified in rendering the finding that the suit was bad for want of a prayer for declaration of title in view of the plaintiff having failed to disclose all the details relating to the legal heirs of deceased Dhamodhara Gounder and non-impleading of them as parties to the suit? (2) Whether there is any perversity or illegality in the findings rendered by the first appellate Court? 7. The admitted or atleast the undeniable facts could pithily and precisely, tersely and briefly be set out thus: One Dhamodhara Grounder who is now no more, was a retired Government teacher who was governed by the Tamil Nadu Government Servants' Rules and Regulations including the Tamil Nadu Pension Rules. He married Krishnaveni Ammal-the plaintiff in both the suits and gave birth to five children namely (1) Elangovan, (2) Sengotuvan, (3) Pandiyan, (4) Karikalan, and (5) Rajalakshmi, D4 to D8 in O.S.No.568 of 1993. According to the plaintiff-Krishnaveni Ammal, Rajalakshmi-D8 was also a child born to her and Dhamodhara Gounder. However, Poongavana Ammal - D2 would dispute the same. During the life time of Dhamodhara Gounder, Krishnaveni Ammal and Dhamodhara Gounder to themselves locked up in litigations. It so happened that Krishnaveni Ammal initiated maintenance proceedings as https://hcservices.ecourts.gov.in/hcservices/ against Dhamodhara Gounder and earlier it was granted, but subsequently he got that order cancelled vide Ex.B12, the certified copy of the order passed in M.C.No.296 of 1979 dated 12.02.1981. Dhamodhara Gounder initiated divorce proceedings and obtained a decree of divorce, vide Ex.B11, as against which Krishnaveni Ammal, preferred appeal for nothing but to be set aside by the learned Principal District Judge, Cuddalore, vide Ex.A5 dated 06.04.1987. 8. Indubitably and indisputably, unarguably and unassailably, the said order of the District Court in anulling the divorce decree attained finality. It is also to be noted that the learned District Judge while rejecting the prayer for divorce and consequently setting aside the divorce decree, gave a categorical finding that the D8- Rajalakshmi was born to the couple, namely Krishnaveni Ammal and Dhamodhara Gounder and it cannot be looked askance at in view of the evidence placed before him to the effect that Dhamodhara Gounder had opportunity of having sexual relationship with Krishnaveni Ammal, even though Krishnaveni Ammal was living in a different place from the place where he was living. That finding attained finality and in such a case, I am at a loss to understand as to how the first appellate Court in this case could give a different finding quite antithetical to the finding given by the learned District Judge. In my opinion, the paternity of the child Rajalakshmi was conclusively decided in the earlier proceedings by the competent Court, so to say in the divorce proceedings and in such a case, the ratiocination adhered to by the first appellate Court in this as matter is perverse and illegal and it cannot be countenanced. 9. At this juncture, I would like to refer to the following decisions: " (i) AIR 1971 SC 2352 (Perumal Nadar (dead) by Legal Representative vs. Ponnuswami Nadar (Minor); certain excerpts from it would run thus: "12.Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrate’s court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living https://hcservices.ecourts.gov.in/hcservices/ in the same village, and unless Perumal was able to establish absence of access, the presumption raised by Section 112 of the Indian Evidence Act will not be displaced. 13.In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana3 in a suit filed by a Hindu son against his father for partition it was contended that the plaintiff was not the legitimate child of the defendant. The defendant relied upon certain documents by which he had agreed to pay maintenance to the plaintiff’s mother and upon a deed gifting a house to her and assertions made in a previous suit that he had no intercourse with her after he married a second wife. The Court in that case observed, following the judgment of the Privy Council in Karapaya v. Mayandi4 that “non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory”, and since on the basis of that proof there was evidence on the record that the plaintiff’s mother lived in the house gifted to her by her husband and there was no impossibility of cohabitation between the parties, there was no acceptable evidence of non-access." (emphasis supplied) (ii) An excerpt from the decision of the Hon'ble Apex Court reported in AIR 1993 SC 2295 (Goutam Kundu vs. State of West Bengal and another) would run thus: "21. above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. (emphasis supplied) 22. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that https://hcservices.ecourts.gov.in/hcservices/ access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. (emphasis supplied) 23. Dukhtar Jahan (Smt) v. Mohammed Farooq this Court held: (SCC p. 629, para 12) “... Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.” (emphasis supplied) 24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”. (emphasis supplied) 25. The quintessence of the legal point that could be understood from the aforesaid decisions is that the presumption contemplated under Section 112 of the Indian Evidence Act is only a rebuttable one. It is therefore, just and necessary to extract the relevant Section, viz., Section 112 of the Indian Evidence Act. "112. Birth during marriage, conclusive proof of legitimacy – The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty https://hcservices.ecourts.gov.in/hcservices/ days after its dissolution, them other remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." (emphasis supplied) 10. The aforesaid decisions would exemplify and demonstrate, display and project, highlight and spotlight that the Court should be reluctant to bastardise a child. Here peculiarly what happened was that, the competent Court in the matrimonial proceedings held that D8-Rajalakshmi was born to Krishnaveni Ammal and Dhamodhara Gounder and in such a case, in the subsequent proceedings, so to say in the appeal which emerged out of O.S.No.568 of 1993, the lower appellate Court was wrong in ignoring the decision rendered by the District Court as evidenced by Ex.A5. It is therefore crystal clear that the plea of adultery as put forth as a defence on the side of D2, was untenable and I am at a loss to understand as to how the first appellate Court quite antithetical to the earlier findings, could reverse the finding of the trial Court; wherefore, interference with the finding of the first appellate Court is warranted. 11. The first appellate Court also in a vague manner referred to G.O.Ms.No.690 and simply held as though the Poongavana Ammal was not continuously living with Dhamodhara Gounder till his death, and that she was not entitled to the Family Pension. In this connection, I would like to point out that the first appellate Court before placing reliance on such Government Order should have extracted the said G.O., or should have given details about the G.O. with reference to date etc., but she has not chosen to do so. Over and above that, Section 49 of the Tamil Nadu Pension Rules, 1978 as amended by G.O.Ms.No.615, Finance (Pension), dated 21st July 1995, vide SRO B- 206/1995, which has been in vogue with effect from 1st January 1979 was not referred to at all. I would like to extract hereunder the relevant portion of Rule 49(13)(a) and (b) of the Tamil Nadu Pension Rules. "49(13) : For the purposes of this rule,- (a) "continuous service" means service rendered in a temporary or permanent capacity in a pensionable establishment and does not include-- (i) period of suspension, if any, (ii) period of service, if any rendered before attaining the age of eighteen years; and (iii) period of extraordinary leave without medical certificate. (b) family, in relation to a Government servant means-- https://hcservices.ecourts.gov.in/hcservices/ [(i)(a) wife in the case of a male Government servant or husband in the case of a female Government servant; (b) a judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty of committing adultery." (emphasis supplied) 12. A bare perusal of the part of the Rule extracted supra, would indicate and exemplify that even a judicially separated wife, otherwise on adultery ground, is entitled to claim Family Pension. When such is the object and intention of the legislation concerned, I am at a loss to understand as to how the first appellate Court could place reliance on some vague Government Order and hold that the plaintiff, Krishnaveni Ammal was not entitled to Family Pension because, she was not living continuously with the deceased Dhamodhara Gounder. The fact also remains that the said Pension Rules extracted supra is applicable with effect from 1st January 1979 and the undeniable fact is that Dhamodhara Gounder died as a retired Government servant during the year 1994. 13. The incontrovertible fact as highlighted supra is that as on the date of death of Dhamodhara Gounder, Krishnaveni Ammal happened to be the legitimate wife of Dhamodhara Gounder and in such a case, as per the Rule extracted supra, she is entitled to Family Pension. Any nomination made by Dhamodhara Gounder nominating his alleged second wife - D2 as the person eligible for Family Pension, is non est in law and Krishnaveni Ammal is right in her prayer seeking declaration that such nomination should be declared as null and void. Quite antithetical to the Pension Rules, no Government servant or retired Government servant is having any right to execute any Will to the contrary, so far as the Family Pensionary rights as contemplated under the Tamil Nadu Pension Rules, are concerned. In this case, it has been contended on the side of D2, that a Will was executed by Dhamodhara Gounder stipulating that the Pensionary benefits should go to D2; however his intention to will away his pensionary rights is non est in the eye of law. 14. In this connection, the learned counsel for the plaintiff also cited the following decisions: (i) The decision of the Hon'ble Apex Court reported in 1991(1) SCC 725 [Smt.Violet Issaac and others v. Union of India and others]; an excerpt from it would run thus: "4.....The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The family https://hcservices.ecourts.gov.in/hcservices/ pension scheme is in the nature of a welfare scheme framed by the Railway administration to provide relief to the widow and minor children of the deceased employee. Since, the Rules do not provide for nomination of any person by the deceased employee during his lifetime for the payment of family pension, he has no title to the same. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition." (ii) The decision of the Madurai Bench of this Court reported in 2008 W.L.R.83 [Puga, Samson v. The Principal, Nesamony Memorial Christian College, Marthandam, Kanyakumari District and two others]; an excerpt from it would run thus: "10. The question as to whether a Government Servant, eligible to receive pension, can execute Will in favour of a third person with regard to family pension, after his demise was considered by the Supreme Court in the decision reported in 1991(1) Law Weekly 621 (Smt.Violet Issac & Others v. Union of India & Others). In the said judgment, the Supreme Court held that family pension cannot be ordered to be given to a stranger other than the widow as it depends on the status that is acquired on the happening of certain event, viz., becoming widow on the death of the husband and hence it cannot be given to any other person by executing a Will or instrument." (iii) The decision of this Court reported in (2008) 7 MLJ 210 [B.Radhunath Singh v. Commissioner, Corporation of Chennai, Ripon Buldings, Chennai and other]; an excerpt from it would run thus: "11. Aggrieved by the order of the Tribunal, the widow and her children filed a Civil Appeal before the Supreme Court. Restricting the relief to the question of payment of family pension and after considering the provisions of Family Pension Rules, 1964, which provide, that family pension shall be granted to (1) Widow/widower of a railway servant (2) Where there is a widow/widower to the minor children of the railway servant (3) son of the deceased until he attains the age of 25 years; and (4) an unmarried daughter until she attans the age of 25 years or until she gets married whichever is earlier, the Supreme Court, following the judgment in Jodh Singh v. Union of India, AIR 1980 SC 2081 : (1980) 4 SCC 306, held at paragraphs 4 and 6 as follows: "The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family https://hcservices.ecourts.gov.in/hcservices/ pension, instead the Rule designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The employee has no title nor any control over the family pension as he is not required to make any contribution to it. The family pension scheme is in the nature of a welfare scheme. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition. Accordingly, in the present case the widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding the will alleged to have been executed by the deceased." Hence, the first appellate Court was totally wrong in its approach in dismissing the suit. 15. Since the parties are fighting at arms length and the factual position placed before me are also clear, I would like to further decide on the respective rights of Krishnaveni Ammal the plaintiff and her five children, namely D4 to D8 and also the rights of the two children, namely Paarivallal and Deivanai born to Poongavana Ammal/D2 and Dhamodhara Grounder and it is quite obvious that the status of D2-Poongavanamal could never be equated to the level of a legitimate wife.; however, the children born to Poongavana Ammal through Dhamodhara Gounder even though are treated as illegitimate children, are entitled to other monetary benefits along with Krishnaveni Ammal and D4 to D8, which accrued in favour of Dhamodhara Gounder, on per capita basis. As such the plaintiff - Krishnaveni Ammal and D4 to D8, namely (1) Elangovan, (2) Sengotuvan, (3) Pandiyan, (4) Karikalan, and (5) Rajalakshmi and Parivallal and Deivani, totally eight persons are entitled to one eighth share each in the emoluments other than pension payable consequent upon the death of Dhamodhara