Rule 46 (5) (i) of the Rules reads as follows: “(5) For the purpose of this rule and Rules 47,48 and 49 ‘family’ in relation to a Government servant, means:- (i) Wife or wives in the case of a male Government servant; ….” Rule 47 deals with persons to whom gratuity is payable, whereas Rules 48 and 49 deal with Retirement Gratuity and Nominations. - On a careful analysis of the relevant provisons of the Pensions’ Act, 1871 and also the Payment of Gratuity Act, 1972 underlying the objects and principles governed the field in relation to the service benefits and also specific exemption which had been thought of, this Court is of the considered opinion that as far as the payment of gratuity is concerned for the issuance of Succession Certificate in the light of the Service Rules governing the field it is just and akin to the pension and hence the Service Rules which virtually govern a different field cannot be said to be in conflict with either the provisions of the Indian Succession Act or the Transfer of Property Act…….” So, from the above decision, it is clear that in so far as payment of gratuity is concerned for the issuance of Succession Certificate, the service rules governing the service of the deceased have to be taken into consideration. So, if that is the case, though the appellant is the second wife and whose marriage is found to be void, still she is entitled for a share in the pension and retirement benefits of the deceased, keeping in view of the object and purpose for which Rule 46 of the Rules is enacted.

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD

(Special Original Jurisdiction)

 

MONDAY, THE SEVENTH DAY OF JUNE
TWO THOUSAND AND TEN

 

PRESENT

 

THE HON'BLE SRI JUSTICE K.C. BHANU

 

CIVIL MISCELLANEOUS APPEAL No.401 OF 2008

 

Between:

 

Kalluri Padmaja

.....APPELLANT

AND

Kalluri Venkata Ramanamma and othes

....RESPONDENTS

The Court made the following:

THE HON’BLE SRI JUSTICE K.C. BHANU

CIVIL MISCELLANEOUS APPEAL No.401 OF 2008

JUDGMENT:

          This Civil Miscellaneous Appeal, under Section 384 of the Indian Succession Act, 1925, (for short, “the Act”) is directed against the order, dated 24.03.2008, in O.P.No.735 of 2003, on the file of the District Judge, Vizianagaram, whereunder and whereby, the petition filed for grant of Succession Certificate in favour of the respondents herein so as to enable them to realize the schedule mentioned death benefits relating to the deceased Kalluri Venkata Govinda Rao (hereinafter referred to as, ‘the deceased’), was allowed.

2.          Appellant herein is the respondent and the respondents herein are the petitioners in the O.P.

3.       The respondents herein filed the O.P. under Sections 371 and 372 of the Act.  The case of Respondent No.1 herein is that she is the legally wedded wife of the deceased, who worked as Sub-Treasury Officer, Kurupam. 
Whereas respondent Nos.2 and 3 herein are the children of the deceased and respondent No.4 herein is the mother of the deceased.  
The deceased died on 31.12.2002 intestate while in service leaving behind the respondents herein.  
Respondent No.1 herein applied to the Mandal Revenue Officer, Kurupam, for issuance of Succession Certificate, but no action has been taken.  
Whereas the appellant herein also applied to the Mandal Revenue Officer, Kurupam, stating that she is the legally wedded wife of the deceased.  
The same was returned to obtain a legal heir certificate from the competent Mandal Revenue Officer in whose jurisdiction the native place of the deceased lies.  
Respondent No.1 herein approached the Mandal Revenue Officer, Jalumuru, since the deceased happened to be the native of Udakalapeta, which is within the limits of Jalumuru Mandal. 
The Mandal Revenue Officer, Jalumuru directed her to file necessary application before the Panchayat Secretary, Parlam.  
When she applied for legal heir certificate before the concerned Panchayat Secretary, the latter informed her to obtain necessary Succession Certificate from the competent Court.  
Hence, she filed the present O.P.

4.       The sole appellant/respondent in the O.P. filed the counter contending that with an evil idea of taking the properties of the deceased, respondents herein filed the O.P. for grant of Succession Certificate; 
that she also denied about the marriage of respondent No.1 herein with the deceased; and that she stated that her marriage with the deceased was performed in accordance with law and therefore, the respondents herein are not entitled for issuance of any Succession Certificate. 

5.       To substantiate the case of the petitioners therein PWs.1 to 4 were examined and Ex.A-1 to A-16 were marked.  
On behalf of the respondent therein, RWs.1 and 2 were examined and Exs.B-1 to B-8 were marked.

6.       The trial Court after considering the evidence on record raised a point that whether respondent No.1 herein or the appellant herein is the legally wedded wife of the deceased. 
 Since the marriage of respondent No.1 herein with the deceased was subsisting as on the date of the alleged second marriage of the deceased with the appellant herein, the trial Court found that the marriage of the deceased with the appellant herein is void.  
Therefore, it held that the appellant is not entitled for any share in the death benefits of the deceased, namely, pension and gratuity. 
 Challenging the same, the present appeal is filed.

7.       Now the point for consideration is whether the order passed by the trial Court is correct, legal and proper?

8.          Learned counsel for the appellant herein contended that since the proceedings under Section 371 of the Act are summary in nature, the necessary evidence has to be let in to show that

 the marriage of the deceased with the appellant herein was performed long back; that they lived together as wife and husband; 

that
Ex.B-1 is the ration card, which would clearly go to show about the marriage between the appellant and the deceased; 

that though her marriage is void under the Hindu Marriage Act, 1955 (for short, “the HM Act”), still she is entitled for a share in the retirement and service benefits of the deceased under Rule 46 of the Andhra Pradesh Revised Pension Rules, 1980, (for short, “the Rules”) 
and therefore, he prays to grant a share to the appellant in the retirement and service benefits of the deceased.

9.       On the other hand, learned counsel for the respondents herein contended that since the marriage of the appellant with the deceased is void, question of giving any retirement benefits, namely, pension and gratuity, to the appellant does not arise; 
that a categorical finding has been recorded by the trial Court that the marriage of the appellant with the deceased was void; 
that after elaborate consideration of the evidence available on record, the trial Court rightly ordered for issuance of the Succession Certificate in favour of the respondents herein; and 
that order needs no interference by this Court and hence, he prays to dismiss the appeal.

10.     There cannot be any dispute that the proceedings under Sections 371 and 372 of the Act are summary in nature.  
In the proceedings, which are of summary nature, the parties need not prove the case beyond preponderance of probability. 
They can show aprima facie case with reference to the pleadings. 
 The evidence of RWs.1 and 2 would go to show that the marriage of RW.1 with the deceased was performed in the year 1995.  
Though there is a discrepancy with regard to the year of the marriage in the evidence and pleadings, that cannot be taken as a sole ground to reject the entire evidence, 
since the parties are illiterates and they may not be in a position to give the exact date or year in which the marriage of the deceased with the appellant was performed.  
Ex.B1 is the ration card issued by the competent authority, in which the appellant was shown as the wife of the deceased.  
The trial Court has not placed any reliance on Ex.B1, because of the reason that it is not substantive evidence. 
In view of the fact that the proceedings are summary in nature, Ex.B1 can safely be taken into consideration for the purpose of deciding the relationship between the parties. 
 Ex.B1 was admittedly issued by the competent authority in the year 2001 i.e, long prior to the death of the deceased.  
Therefore, as per Ex.B1, it can be safely concluded that the appellant is the wife of the deceased.  
It is not in dispute that the first marriage of the deceased with respondent No.1 herein was performed and was subsisting.  
However, the marriage of the appellant with the deceased is void, in view of Section 5 of the HM Act, 
and in view of the decision of this Court relied upon by the learned counsel for the respondents herein in
G. Nirmalamma and others V. G.Seethapathi[1], wherein it is held thus:

“From the facts and circumstances of the case and the settled principles of law, it is clear that when a male Hindu contracts second marriage when the legally wedded first wife is alive, the marriage is in violation of Section 5(i) of the Hindu Marriage Act and it can be held that it is a void marriage, but the children born to them are legitimate children and they are entitled to succeed to the properties of their father, who died intestate and the second wife is not entitled to share the property of her husband, but she can claim maintenance.  So applying the above said principle to the facts and circumstances of this case, the deceased married the first appellant, though it is claimed by the first appellant that the marriage took place in the year 1955, but as held by the trial Court the marriage took place after 1960, after the first appellant was appointed as a nurse, during the subsistence of the first marriage of the deceased with the second respondent…………”.

The second marriage between the appellant and the deceased is in contravention of Section 5 (1) of the HM Act and therefore, it is void marriage. 

11.          Similarly, learned counsel for the respondents herein placed strong reliance on a decision of a Division Bench of this Court in
K. Suramma V. K. Ramayyamma and others[2], wherein it is held thus:

“The fact that the husband and wife have been living separately for a long time, due to desertion or otherwise, or the fact that the spouses have illicit intimacy with others are only grounds for divorce, but by themselves they do not establish that there was divorce between the spouses.  Therefore we are unable to agree with the finding and also the reasons for the finding of the court below that there was dissolution of marriage between the appellant and the deceased.  When evidence regarding custom and customary divorce is lacking, appellant and deceased living separately per se, does not establish dissolution of their marriage.  So appellant continued to be the wife and widow of the deceased.  The point is answered accordingly.”

There is no dispute about the law laid down by this Court with reference to Section 5 (1) of the HM Act, when a second marriage is contracted by the husband with another women, when the first marriage was subsisting, the second marriage is void.

12.          Similarly, the learned counsel for the respondents herein relied upon a decision of the Supreme Court in Rameshwari Devi vs. State of Bihar and others[3], wherein it is held thus:

“14. …….  That is, however, the legal position when a Hindu male dies intestate.  Here, however, we are concerned with the family pension and death  - cum – retirement gratuity payments which are governed by the relevant rules…..”

Even the above decision would clearly go to show that the family pension – cum – retirement gratuity is to be governed by the relevant rules.

13.     On the other hand, learned counsel for the appellant relied upon a decision of the Supreme Court in Vidhyadhari and others Vs. Sukhrana Bai and others[4], wherein it is held thus:

“Therefore, though we agree with the High Court that Sukhrana Bai was the only legitimate wife yet, we would choose to grant the certificate in favour of Vidhyadhari who was his nominee and the mother of his four children.  However, we must balance the equities as Sukhrana Bai is also one of the legal heirs and besides the four children she would have the equal share in Sheetaldeen’s estate which would be 1/5^th.  To balance the equities we would, therefore, choose to grant succession certificate to Vidhyadhari but with a rider that she would protect the 1/5^th share of Sukhrana Bai in Sheetaldeen’s properties and would hand over the same to her.  As the nominee she would hold the 1/5^th share of Sukhrana Bai in trust and would be responsible to pay the same to Sukhrana Bai.  We direct that for this purpose she would give a security in the trial court to the satisfaction of the trial court.”

The ratio laid down in the above case is that a nomination was made in favour of second wife to receive the terminal benefits from the employer of the deceased and therefore, the succession certificate was given in favour of the second wife. 

But the said ratio has no application with the facts of the present case, in view of the fact that no nomination was admittedly given in favour of the appellant or in favour of the respondents herein.  

Therefore, in such circumstances, the Rules, which are made in exercise of the powers conferred under Article 309 of the Constitution of India, can be taken into consideration.

 Rule 46 (5) (i) of the Rules reads as follows:

“(5) For the purpose of this rule and Rules 47,48 and 49 ‘family’ in relation to a Government servant, means:-

(i) Wife or wives in the case of a male Government servant; ….”

Rule 47 deals with persons to whom gratuity is payable, whereas Rules 48 and 49 deal with Retirement Gratuity and Nominations.   

14.     On this aspect, the learned counsel for the appellant referred to a decision of this Court in B. Agnis Marry v. Kanaparthi Jamima Raja Kumari and another[5], wherein it is held thus:

“20. ….. On a careful analysis of the relevant provisons of the Pensions’ Act, 1871 and also the Payment of Gratuity Act, 1972 underlying the objects and principles governed the field in relation to the service benefits and also specific exemption which had been thought of, this Court is of the considered opinion that as far as the payment of gratuity is concerned for the issuance of Succession Certificate in the light of the Service Rules governing the field it is just and akin to the pension and hence the Service Rules which virtually govern a different field cannot be said to be in conflict with either the provisions of the Indian Succession Act or the Transfer of Property Act…….”

So, from the above decision, it is clear that in so far as payment of gratuity is concerned for the issuance of Succession Certificate, the service rules governing the service of the deceased have to be taken into consideration.  So, if that is the case, though the appellant is the second wife and whose marriage is found to be void, still she is entitled for a share in the pension and retirement benefits of the deceased, keeping in view of the object and purpose for which Rule 46 of the Rules is enacted.

15.          Accordingly, the Civil Miscellaneous Appeal is allowed, giving a share to the appellant also from the retirement benefits, namely, pension and gratuity, of the deceased. There shall be no order as to costs.

_______________

K.C. BHANU, J

June 07, 2010

MD/IVD

---

[1] 2000 (6) ALD 481

[2] 2002 (2) ALT 65 (D.B.)

[3] (2000) 2 SCC 431

[4] (2008) 2 SCC 238

[5] 2007 (3) ALD 508