Devaki v. K. Devayani and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 SA.No. 573 of 2002() -------------------AS.207/1995 of I ADDL. DISTRICT COURT, PALAKKAD OS.296/1992 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT(S): RESPONDENT/DEFENDANT ---------------------------------- DEVAKI, AGED 68 YEARS, W/O. LATE I. RAMAN, NO.69, BAJANA KOIL STREET, PODANUR, COIMBATORE. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT(S): APPELLANTS & RESPONDENTS/PLAINTIFF & DEFENDANTS -------------------------------------------------------------- 1. K.DEVAYANI, AGED 60 YEARS, KATTAKATH HOUSE, KUZHIYANAM KUNNU, VADANAKURUSSI, SHORANUR, OTTAPPALAM TALUK. 2. K.SIVAKUMAR, AGED 27 YEARS OF DO. DO. 3. K.LATHIKA, AGED 22 YEARS, OF DO. DO. 4. THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. 5. THE SENIOR DIVISIONAL PERSONNEL MANAGER, S.RAILWAY DIVISIONAL OFFICE, PALAKKAD. 6. THE BRANCH MANAGER, STATE BANK OF INDIA, PODANUR, COIMBATORE. 7. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, S.RAILWAY, CHENNAI. ADV. SRI.N.B.SUNIL NATH, STANDING COUNSEL FOR RAILWAYSFOR R4, R5 & R7 SRI.T.M.CHANDRAN FOR R1TO3 SRI.P.RAMANKUTTY FOR R1TO3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------S.A.No.573 of 2002 -------------------------------------Dated this the 2[nd] day of March, 2010.** ## **JUDGMENT** Fight is between two ladies each claiming to be legally wedded wife of the late Raman to the exclusion of the other. The said Raman was working as a gangman in Southern Railway and retired on 31.5.1972. As Ext.A3 shows he died on 13.7.1981. Before death for the purpose of drawing family pension he had nominated appellant/defendant No.1 as per Ext.B1 stating that appellant is his wife. After retirement Raman was drawing pension and after his death, respondent Nos.1 to 3 approached railway authorities (respondent Nos.4 and 5) with a request to extent benefits to them consequent to the death of Raman. On 27.9.1982 the Accountant General instructed the Sub Treasury Officer, Ottappalam to pay life time pension arrears and other benefits to respondent Nos.1 to 3. While so respondent No.4, General Manager of Southern Railway informed respondent Nos.1 to 3 that pension has been sanctioned to the appellant. Respondent Nos.1 to 3 challenged that order before the Central Administrative Tribunal (for short, “the CAT”) in O.A.No.249 of 1990. The CAT quashed the order granting pension to the appellant and directed respondent No.4 to conduct enquiry as to who exactly is the legal representative of the late Raman. Respondent No.4 conducted some enquiry which according to respondent Nos.1 to 3 was not satisfactory and found that appellant is the legally wedded wife of the late Raman and that benefits are payable to her. **SA No.573/2002** 2 Aggrieved by that report respondent Nos.1 to 3 approached the civil court seeking declaration that respondent No.1 is the legally wedded wife of the late Raman and that she is entitled to the pensionary benefits. They sought for a decree for prohibitory injunction restraining respondent Nos.4 and 5 from making any payment to the appellant as legal representative of the late Raman. Appellant contended that the civil court has no jurisdiction to try the suit since the matter has already been taken before the CAT by respondent Nos.1 to 3 and an order has been passed by that authority. A further contention is that respondent No.1 is not the legally wedded wife of the late Raman and that appellant was nominated by the late Raman to receive family pension as his wife. Learned Additional Munsiff was of the view that the civil court had no jurisdiction to decide the dispute regarding marital status of the parties since the CAT had taken seizin of the matter and issued Ext.A6, judgment directing respondent No.4 to conduct enquiry and decide the matter. Learned Additional Munsiff also held that if at all the enquiry conducted by respondent No.4 is not proper remedy of respondent Nos.1 to 3 was to approach the CAT and not to approach the civil court. Holding so, the suit was dismissed. Respondent Nos.1 to 3 took up the matter in appeal. First appellate court found that a suit for declaration as to marital status is a suit of civil nature coming within the jurisdiction of civil court, finding of the trial court that only the CAT can entertain a suit of that nature is not sustainable and held on the evidence that respondent No.1 is the **SA No.573/2002** 3 legally wedded wife of the late Raman and accordingly reliefs as prayed for were granted to respondent Nos.1 to 3. That is under challenge in this Second Appeal by way of urging following substantial questions of law: i. In view of Ext.A6, judgment passed by CAT whether civil court had jurisdiction to entertain the dispute relating to marital status of appellant and respondent No.1 viz-a-viz the late Raman? ii. Whether report of enquiry prepared by respondent No.4 which merged in the judgment of the CAT (Ext.A6) could be challenged in the present suit? iii. Whether suit is barred by the General Principles of res judicata? iv. On the materials on record has not the first appellate court legally wrong in holding that respondent No.1 is the legally weded wife of the late Raman. Learned counsel for appellant raising the above points argued that in so far as the CAT has power to decide the dispute regarding right for payment of family pension it was incidental to the CAT to decide the marital status of the parties concerned which was decided by the CAT as per Ext.A6, judgment directing respondent No.4 to conduct a detailed enquiry into the matter. Thus report **SA No.573/2002** 4 prepared by respondent No.4 merged in Ext.A6, judgment of the CAT and hence any complaint regarding Ext.A5, report ought to have been preferred before the CAT and not before the civil court. It is the contention of learned counsel that after amendment of Section 11 of the Code of Civil Procedure (for short, “the Code”) in 1976 incorporating Clause VIII to the Explanation to Section 11 even decisions of the courts of limited jurisdiction notwithstanding that it had no jurisdiction to decide the subsequent suit would operate as res judicata so far as questions which were directly and substantially in issue between the parties or their privies and decided finally by a competent court or Tribunal. Learned counsel has placed reliance on the decision in **Sulochana Amma v. Narayanan Nair (1993(2) KLT 938)** . It is also argued by the learned counsel that trial court has not entered a finding as to who is the legally wedded wife of the late Raman, the suit was dismissed on a preliminary issue and hence finding entered by the first appellate court is perverse, at any rate as all relevant aspects of the matter were not taken into account. In response it is contended by learned counsel for respondent Nos.1 to 3 that the CAT has no jurisdiction to decide matter of this nature as dispute is regarding marital status and declaration prayed for accordingly which are matters within the exclusive jurisdiction of the civil court. Learned counsel contends that even as per Ext.A6 the CAT has not entered into that controversy and has only set aside order granting pension to the appellant for reasons stated in Ext.A6. Contention that Ext.A5 has merged in Ext.A6, judgment of the CAT cannot stand. On facts it is **SA No.573/2002** 5 contended that first appellate court was legally correct in deciding the issue even at the first instance in view of Order 41 Rule 24 of the Code on the materials on record. It is contended that first appellate court was justified in holding that respondent No.1 is the legally wedded wife of the said Raman. 2. To answer the question raised regarding jurisdiction of the civil court it is necessary to refer to Ext.A6, judgment passed by the CAT. It is not disputed that O.A. was preferred by respondent Nos.1 to 3 challenging the order of respondent No.4 sanctioning family pension in favour of appellant. After referring to the contentions raised by the parties before the CAT, that authority stated in Ext.A6, in paragraph No.4, “Having heard the arguments of learned counsel on both sides, I am of the view that the disbursement of the pensionary benefit due to a deceased Railway servant will depend upon the provisions of Family Pension Scheme for Railway Employees 1964. Under the scheme the family includes wife and minor children of the deceased Government servant. ................. There is no provision in the scheme for making a nomination by the Railway Servant and disbursing the pensionary benefits to such a nominee of the **SA No.573/2002** 6 Government servant. This is supported by the recent decision of the Supreme Court reported in Violet Issac v. Union of India (1991 1) KLT 579)”. The decision in Violet Issac's case (supra) is that there is no provision for nomination of any person by an employee as he has no title to the same and family pension is payable to the persons referred to in the Railway Family Pension Rules, 1964 which included wife in the case of male railway servants. In paragraph No.6 of Ext.A6 the CAT directed that in the light of the factual controversy (as to the marital status between appellant and respondent No.1) no relief could be granted as prayed for by respondent Nos.1 to 3 and the proper course in the circumstances of the case is to direct respondent No.4 (respondent No.1 in the CAT) to conduct a detailed enquiry after summoning the parties concerned as to who is the legally wedded wife of the late Raman and to sanction pension to the person found entitled as a result of that enquiry. It is pursuant to Ext.A6, judgment that respondent No.4 conducted the enquiry. Ext.A5 is the report as per which respondent No.4 came to the conclusion that appellant is the legally weded wife of the late Raman. Of course respondent Nos.1 to 3 have their own version as to the manner in which respondent No.4 conducted that enquiry. That is not a matter required to be decided here. I am unable to accept the contention of learned counsel for appellant that Ext.A5 has merged in Ext.A6. True, under Section 14 of the Administrative Tribunals Act, 1985 (for short, “the Act”), the CAT has power to deal with all service matters as **SA No.573/2002** 7 referred to therein. In this case even if it is assumed that to decide the question regarding entitlement of family pension which according to the learned counsel is a dispute relating to service, it was necessary for the CAT to enter a finding as to who is the legally wedded wife of the late Raman, as I stated, Ext.A6 does not involve any such finding. Ext.A6 only set aside the order for payment of pension passed by respondent No.4 and directed a fresh enquiry into the matter. It is nobody's case stated that consequent to Ext.A5, report any of the contesting parties have approached the CAT again either to accept Ext.A5, report or with their grievance to that report and the CAT has passed any order. So far as the dispute regarding marital status of respondent No.1 and appellant is concerned the CAT has not passed any order even if it is assumed that the CAT had the authority to decide that issue also being relevant for the decision as to who is entitled to the family pension. Explanation VIII to Section 11 only said that even decisions entered by a court or Tribunal of limited jurisdiction on matters directly and substantially in issue before it would operate as res judicata in the subsequent suit. To operate as res judicata, there must be a decision by the Tribunal or court, be it of limited jurisdiction. 3. The Act does not also expressly or impliedly take away jurisdiction of the civil court to entertain a suit for declaration as to marital status of an employee and grant consequential reliefs with respect to sanction of pension It has been held by the Supreme Court in **Rajasthan State Road** **SA No.573/2002** 8 ## **Transport Corporation and another v. Ban Mukund Bairwa** **[(2009) 4 SCC 299]** that the jurisdiction of the civil court is plenary and that the bar should be express or implied. Apex Court in **Raja Ram Kumar Bhargava v. Union of India (AIR 1988 SC 752)** has stated that when jurisdiction of the civil court may be said to be ousted. When a right pre-existing in common law is recognized by a special statute and a remedy for its enforcement is also provided in that statute in the absence of an express bar jurisdiction of the civil court is not ousted. If the right is created for the first time by the special statute which provides a machinery for enforcement of that right, implied bar of jurisdiction of the civil court would arise. None of these situations arise in this case since the Act neither expressly nor impliedly ousts jurisdiction of the civil court to entertain dispute of this nature and grant declaration and consequential reliefs. Hence the contention that in view of Ext.A6, judgment and consequent report, the jurisdiction of the civil court is ousted is something which I am unable to accept. Trial court has gone wrong on the point and the first appellate court has exercised the jurisdiction conferred on it. 4. Now the question is whether on account of respondent Nos.1 to 3 approaching the CAT with O.A.No.247 of 1990 which culminated in Ext.A6, judgment and consequently Ext.A5, report the jurisdiction of the civil court is ousted by the doctrine of election. There is no finding one way or other as to the disputed marital status of respondent No.1 and appellant and as I already **SA No.573/2002** 9 stated, none of the contesting parties have approached the CAT against Ext.A5, report. The civil suit is not one to set aside Ext.A5, report but for declaration and consequential reliefs which the civil court is competent to grant. Therefore consequent to my finding that civil courts' jurisdiction is not impliedly or expressly barred by the provisions of the Act question of jurisdiction of civil court being excluded by the doctrine of election also does not arise. 5. What remained is whether the first appellate court was legally correct in deciding the disputed issue at the first instance and whether on facts and evidence that court was justified in holding in favour of respondent Nos.1 to 3. So far as the first appellate court deciding the question of fact at the first instance is concerned under Order 41 Rule 24 of the Code permits that. What remained is whether the finding of the first appellate court is illegal and this Court should interfere in the Second Appeal as if there is any substantial question of law involved in that regard. Respondent No.1 has given evidence as PW1 and though the year, month and date of her alleged marriage with the late Raman is not stated in the plaint, in the evidence she stated that it was on a Sunday in the month of June, 1970. She stated about the religious ceremony herself and the late Raman underwent at the time of marriage. She produced Ext.A1, ration card issued to the late Raman during 1981-82 to 1984-85 where she is described as 'wife' and respondent No.2 is described as 'daughter' (of the late Raman). Ext.A2 is copy of the proceeding of the Sub Divisional Magistrate dated 5.12.1981 on an application preferred by respondent No.1 on 18.9.1981 **SA No.573/2002** 10 as regards the date of birth of respondent No.3. There name of the father of respondent No.3 is stated as 'Raman'. Ext.A4 is an extract of school admission register dated 22.9.1981 concerning respondent No.2 where also name of the father is stated as 'Raman'. Ext.A7 is a letter dated 5.1.1988 issued to respondent No.1 from the Railway authorities wherein she is described as wife of the late Raman. Ext.A8 is the notice issued to respondent No.1 from the village office describing her as wife of the late Raman. As against the above oral and documentary evidence appellant gave evidence as DW1 and relied on Ext.B1. As DW1 she asserted that she is the legally wedded wife of the late Raman but she was not able to state about the year, month or date of the alleged marriage either in the written statement or in her evidence. She produced Ext.B1 as per which the late Raman nominated her to to draw family pension (it was under challenge in Ext.A6). In Ext.B1 late Raman has described appellant as his 'wife'. Now the question is whether finding of the first appellate court that respondentNo.1 is the legally wedded wife of the late Raman is perverse or not supported by any evidence as contended by the appellant. 6. Ext.A3 shows that late Raman died on 13.7.1981. Exts.A2 and A4 come after death of Raman but Ext.A1 shows that even during life time of the late Raman respondent No.1 was treated by him as his wife. Respondent No.3 was treated as his daughter born in respondent No.1. Ext.A3 also states so. I stated that Exts.A2 and A4 came after the death of Raman. But in Ext.A1 respondent No.3 was accepted by Raman as his daughter. Ext.B1, going by **SA No.573/2002** 11 the contention raised by respondent Nos.4 and 5 was given in the year 1972. In the plaint age of respondent No.2/plaintiff No.2 is given as 17 in the year 1992 in which case she should have been born in the year 1973 -1974 (in Ext.A4 the date of birth is stated as 15.3.1974). That being the situation, there is substance in the evidence of respondent No.1 as PW1 that the late Raman and herself were residing as husband and wife following the marriage she pleaded, in June, 1970. I stated that Raman died on 13.7.1981. Thus there is evidence to show that from 1970 onwards respondent No.1 and the late Raman were residing as husband and wife. True, in Ext.B1 the very same Raman has acknowledged appellant as his 'wife'. But that comes in the year 1972 and as the evidence goes, after the late Raman started residing with respondent No.1 as husband and wife. In the decisions in **Mst. Lolo (dead) through her** ## **L.Rs. and others v. Mst.Durghatiya and others (AIR 2001 Madhya** **Pradesh 188)** it is stated that living together continuously for a long period and giving birth to children by itself does not give rise to any presumption of valid marriage. That decision was rendered on the facts of the case where there was dispute as to the existence of valid marriage. It is in the above circumstance that it was held so. On the other hand, the Supreme Court in ## **S.P.S.Balasubramanyam v. Suruttayan alias Andali Padayachi and others (AIR 1994 SC 133)** and **Tulsa and others v. Durghatiya** **and others ((2008) 4 SCC 520)** has stated that long cohabitation as **SA No.573/2002** 12 husband and wife raises a presumption regarding marriage ofcourse rebuttable in nature. In this case, presumption of marriage arising from long cohabitation of the late Raman and respondent No.1 is sought to be rebutted by the evidence of appellant as DW1 and Ext.B1. So far as the evidence of DW1 is concerned, it is seen from her testimony that to many of the questions put to her she could only plead ignorance. Though she claimed that herself and the late Raman were residing together she was not able to produce any document to prove that. When asked about the voters list, ration card and hospital card for allegedly treating the late Raman, she could only keep mum. Evidence let in by the appellant as DW1 was not satisfactory and is not sufficient to rebut the presumption of marriage from long cohabitation of respondent No.1 and late Raman. It is in the above circumstances that evidence of respondent No.1 was preferred to that of appellant in the first appellate court concluding that respondent No.1 is the legally wedded wife of the late Raman. I do not find anything perverse in that finding nor any jurisdictional error in the matter. 7. Learned counsel for appellant submits that by virtue of the order which was set aside as per Ext.A6, some amount has already been received by the appellant. Learned counsel submits that appellant has nobody to look after and has no income as well. Learned counsel requests that appellant may not be asked to refund that amount. In the circumstance stated by the learned counsel in exercise of the plenary power of this Court I direct that the amount already received by the appellant need not be refunded to respondent Nos.1 to 3 or the railway authorities. Entitlement of respondent Nos.1 to 3 will be to get the **SA No.573/2002** 13 benefits from the period subsequent to the period for which amount is already paid to the appellant. Substantial questions of law framed above are answered accordingly. With the above direction Second Appeal is dismissed. Parties shall suffer their respective cost. C.M.P.No.1823 of 2002 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks** **SA No.573/2002** 14 **Thomas P.Joseph, J.** **S.A.No.573 of 2002 JUDGMENT 2[nd] March, 2010.**