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Judgment
S. Rajeswaran, J.—The unsuccessful plaintiffs before both the courts below are the appellants before this Court.
The suit in O.S. No. 265 of 2004 was filed by the plaintiffs for the relief of declaration that they are the legal heirs of the deceased Senthilkumar and also for a permanent injunction restraining the first defendant from releasing the terminal benefits of the deceased Senthilkumar to the second defendant.
The case of the plaintiffs is that the first plaintiff was married to one Senthilkumar on 10.06.1996 at Kovilpatti as per Hindu rites and customs.
At the time of marriage, Senthilkumar was employed as a Police Constable in Anna Nagar Police Station, Chennai. Both the spouses started their family life at Chennai. After serving in different places, in the year 2000, the said Senthilkumar was transferred to Secretariat Colony Police Station and he was allotted with a police quarters. The second plaintiff was born to them on 23.06.1997. While so, on 02.10.2002, Senthilkumar died while he was in service. The last rites were performed by the plaintiffs. Thereafter, the plaintiffs moved their family to Kovilpatti and they have been living there permanently. The plaintiffs have also obtained Legal Heir- ship Certificate to the effect that they are the legal heirs of the deceased Senthilkumar. They made a request to the first defendant, under whom the deceased Senthilkumar was working, for getting the terminal benefits like Death-cum-Retirement Benefit, Pension, Provident Fund and arrears of salary. The first plaintiff also sought for compassionate appointment from the first defendant, since her husband died in harness. The Second defendant is not known to the first plaintiff at all. But the second defendant on the death of the deceased Senthilkumar, demanded the dead body of the deceased Senthilkumar to her. However, the body was handed over to the first plaintiff. It is stated that the deceased Senthilkumar had developed illicit intimacy with the second defendant and begotten children through her. But the first plaintiff asserts that there was no marriage between the deceased Senthilkumar and the second defendant and the second defendant is not the legal heir of the deceased Senthilkumar. However, the second defendant has been standing in the way of the plaintiffs getting the terminal benefits of the deceased Senthilkumar. On 11.10.2003, the first defendant sent a letter to the plaintiffs, wherein, the first defendant asked for a Succession Certificate to be obtained from the Court. The plaintiffs further add that in the presence of elders, there was a compromise entered into on 23.04.2003, between the second defendant and the first plaintiff, wherein, both of them agreed to receive the terminal benefits. On the basis of the compromise, both of them made a request to the first defendant to release the terminal benefits. However, the said request was rejected by the first defendant by letter dated 11.10.2003. It is also stated by the plaintiffs that the request made by the plaintiffs repeatedly to the first defendant's office to give details with regard to the arrears of terminal benefits, so as to enable the plaintiffs to file appropriate petition before the court of law, were not considered by the first defendant. Therefore, in order to claim the terminal benefits, the above suit was filed by them.
As per the Written Statement of the first defendant, since two persons are claiming that they are the wives of the deceased Senthilkumar, both the first plaintiff and the second defendant were directed by the first defendant to go before the appropriate court to obtain the Succession Certificate in order to claim the terminal benefits. The first defendant further stated that on an enquiry conducted in this regard, the deceased Senthilkumar married the second defendant and later on married the first plaintiff. He further stated that as the second wife, the first plaintiff is not entitled to Family Pension, but, the second plaintiff is entitled for all the terminal benefits in equal share.
In so far as the Written Statement filed by the second defendant is concerned, the second defendant has totally denied the allegations made by the first plaintiff in the plaint. According to the second defendant, she is the legal heir of the deceased Senthilkumar and their marriage took place on 02.09.1990 at Mariamman Temple at Ooty, according to Hindu rites and customs in the presence of the relatives. The said marriage was also registered with Registrar of Marriages, Ooty on 14.09.1990 under Sl. No. 59 of 1990. After the marriage, the deceased SenthilKumar and the second defendant were living as husband and wife at Pudhu Manthu Police Quarters in Ooty, where the deceased Senthilkumar was working as the Police Constable. After serving in Ooty for about three years, the deceased Senthilkumar was transferred to Chennai and both the second defendant and the deceased Senthilkumar were living in a rented house at Ayanavaram and then at Aminjikarai. According to the second defendant, during the course of marriage between the second defendant and deceased Senthilkumar, two children were born to them, who are now aged 14 and 10 years. The second defendant has totally denied about the marriage of the first plaintiff with the deceased Senthilkumar.
According to her, even if there was a marriage with the first plaintiff, it would not be a valid one in the eye of law. According to the second defendant, the plaintiffs cannot claim as legal heirs of the deceased Senthilkumar. Further, according to the second defendant, on 23.04.2003, few men came to her house from Chennai and got her signature in a typed matter, falsely stating that they could get the terminal benefits from the Government and the agreement was written only in respect of getting a job for her on compassionate ground. The second defendant, who is an illiterate lady and not conversant with English and believing the words, signed the papers. Thus, she denied the execution of the compromise entered into on 23.04.2003. Thus the second defendant sought for the dismissal of the suit.
On the basis of the above said pleadings, the trial Court framed the following issues:
Whether the plaintiffs are entitled to the relief of declaration?
Whether the plaintiffs are entitled to get the relief of permanent injunction as prayed?
To what other reliefs?
Whether the suit is bad for non-joinder of necessary parties?
Before the trial court, on the side of the plaintiffs, the first plaintiff was examined as P.W.1 and one Tmt. Chellathai as P.W.2 and one Thiru.Rathinavelu as P.W.3 and Exs.A1 to Ex.A8 were also marked on behalf of the plaintiffs. On the side of the defendants, Tmt. Santhi, the second defendant was examined as D.W.1 and no document was marked on her side. On the basis of the oral and documentary evidence, the trial court held that there was a valid marriage existed between the deceased Senthilkumar and the second defendant and that they have begotten two children through their wedlock. The trial court has also dismissed the suit on the ground that the trial court has held that children born through the second defendant were not made as parties to the suit, and therefore,the suit is bad for non-joinder of necessary parties.
As against the said judgments, the Plaintiffs filed A.S. No. 5 of 2007, before the Subordinate Court, Kovilpatti, wherein, on the basis of the above judgment of the lower appellate court reframed the following issue for consideration:
Whether the appeal is to be allowed or not?
The lower appellate court after re-evaluating and re-appreciating the evidence available before the court held that both the marriages,i.e., between the second defendant and the deceased Senthilkumar and between first plaintiff and the deceased have not been proved. But the lower appellate court observed that surrounding circumstances could be taken to presume that the marriage between the second defendant and the deceased is earlier in point of time. The lower appellate court also dismissed the suit for non-joinder of necessary parties, i.e., the children of the second defendant and the State Government.
Aggrieved by the said judgment, the first plaintiff has filed the above second appeal raising the following substantial questions of law:
(a) Have not the courts below committed error in law in dismissing the suit as maintainable on account of not mentioning the State of Tamil Nadu?
(b) Have not the courts below committed an error in law in holding that the suit is not maintainable on account of non impleading of the sons of the second defendant when they are minors that too when the second defendant is already a party?
(c) Are the Courts below justified in law in dismissing the suit when the court has ample power to implead the proper party and to rectify the defect in the cause title, as provided under Order 1 Rule 9 and 10(2) of C.P.C?
(d) Have not the courts below have erred in law in presuming the factum of valid marriage of the second defendant in the absence of specific plea and evidence to corroborate the factum of marriage?
(e) Are the Courts below justified in law in presuming a valid Hindu Marriage in favour of the second defendant based on the evidence of the plaintiffs'' when the factum of marriage was not proved by the said defendant that too when the parties belong to two different religions?
I have heard the learned Counsel appearing for the appellants and learned Additional Government Pleader(CS)for the first respondent and Mr.D.Rajendiran, learned Counsel appearing for the second respondent. I have perused the entire material available on record, including the judgments of both courts below.
It is a case where the first plaintiff claiming to be the first wife of the deceased Senthilkumar, who was working as Police Constable in the Police Department and later died while he was in service, filed the suit in O.S. No. 265 of 2004 in order to claim the terminal benefits of the deceased Senthilkumar. Her request to the first defendant,namely, the Commissioner of Police, Egmore, Chennai was rejected and she was directed to obtain a Succession Certificate, since the second defendant was also claiming the terminal benefits.
The claims of the second defendant was received by the first defendant by stating that the first plaintiff is the second wife of the deceased and second defendant is the first wife of the deceased. The second defendant contended that she married the deceased at Ooty on 02.09.1990 itself and two children were born to them and therefore she and her two children are the legal heirs who are entitled to the terminal benefits. On the basis of the evidence, the trial court came to the conclusion that it was the second defendant who married the deceased earlier and therefore the relief of declaration and injunction could not be granted. The trial court also dismissed the suit for non-joinder of necessary parties, i.e., the two children of second defendant and the State Government.
The lower appellate court after re-evaluating the evidence came to the conclusion that both the first plaintiff and the second defendant could not establish the factum of marriage through records. But, it presumed that the marriage between the deceased and the second defendant is earlier in point of time. The lower appellate court agreed with the conclusion of the trial court that the suit is bad for non-joinder of necessary parties.
In the light of the above, I do not find any question of law much less the substantial questions of law that has arisen for consideration in the Second Appeal. When the plaintiff is not able to prove the factum of marriage as claimed by her, both the courts are right in dismissing the suit.
Thus the matter in controversy is a pure question of fact and both the Courts below, on the basis of the evidence adduced by the parties found that the first plaintiff has miserably failed to establish her case. This Court is not sitting in its jurisdiction u/s 96 of CPC to re evaluate the evidence.
In the absence of any substantial questions of law that arise for consideration, it is not possible for this Court to disturb the concurrent findings of both the Courts below u/s 100 of Civil Procedure Code.
Therefore, on the above said reasons, I do not find any merit in the second appeal. Hence, the same is dismissed. No costs. Consequently, the connected M.P. No. 2 of 2008 is also dismissed.