Tmt.Krishnammal (D1) vs A.

Mary (Plaintiff) on 25 September, 2008

Madras High Court

Tmt.Krishnammal (D1) vs A.Mary (Plaintiff) on 25 September, 2008

BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS

DATE : 25.09.2008
CORAM
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
A.S.No.496 of 2006
and
C.M.P.No.801 of 2006

Tmt.Krishnammal (D1) .. Appellant

Vs.

1.A.Mary (plaintiff)

2.The Chairman, (D2)

Chennai Port Trust,
Chennai-1.

3.The Branch Manager, (D3)

XIII Branch,
Life Insurance Corporation
Bombay Mutual Buildings V Floor,
Parrys Corner, Chennai.

4.The Manager Claims (D4)

L.I.C. 11, B.B.1209,
C-47 Second Avenue,
Anna Nagar, Chennai-40.

5.Lalitha (D5) .. Respondents

Prayer :- This appeal has been preferred under Order 41 Rule 1 of CPC against the decree and ju
For Appellant : Mr.G.K.Sekar, Advocate
For Respondents: Mr.R.Karunakaran, Advocate (for R5)
Mr.T.Muruganandham, Advocate (for R3)

JUDGMENT

This appeal has been directed against the decree and judgment in O.S.No.153 of 2002 on the file of
the II Additional Family Court, Chennai.

Indian Kanoon - http://indiankanoon.org/doc/1616446/ 1

 Tmt.Krishnammal (D1) vs A.Mary (Plaintiff) on 25 September, 2008

2.The averments in the plaint in brief relevant for the purpose of deciding this appeal runs as
follows:-

2(a)The marriage between the plaintiff and her deceased husband G.Janakiraman was solemnised
according to the Hindu rites and rituals on 4.11.1985 at P.V.N.Kalyana Mandapam, No.16, Nettu
Pillaiyar Koil Street, Madras. After the marriage the plaintiff and her deceased husband lived as
legally wedded wife and husband. Thereafter, the first defendant treated the plaintiff with cruelty
and that the plaintiff was driven out of the matrimonial home and forced to live with her parents.

2(b)The plaintiff filed Maintenance Case No.55 of 1990 before the Additional Family Court,
Chennai. The Maintenance was ordered to the plaintiff at the rate of Rs.400/- per month initially,
later it was enhanced to Rs.500/- pm. Even though the plaintiff's husband was very affectionate
with the plaintiff, the first defendant never allowed for re-union. The plaintiff's husband was
employed as Technician, Grade-II, Token No.4351, EME IV Container Handling Department, in the
Chennai Port Trust. During the employment of plaintiff's husband, he has taken two life Insurance
Policies Nos.44008699 and 711371095 with the third defendant. The plaintiff's husband nominated
the first defendant his mother as nominee. After the Marriage, the name of the nominee, viz.
mother's name (D1), continued without changing the name of the plaintiff, who is the legal heir
under the Hindu Succession Act. Nominating any one of them in the Insurance Police is restricted
only for the collection of the money after the maturity of policy or the death of the policy holder. The
object of the Insurance policy nomination is only for collecting money on behalf of all the legal heirs.
The name of the plaintiff after the marriage was not changed by her husband, when he was alive,
that will not deprive her to claim under the policy as per the Hindu Succession Act 1956.

2(c)The plaintiff's husband expired on 18.6.2002 at the Port Trust Hospital due to Jaundice and the
plaintiff attended the funeral ceremony on 19.6.2002 as a dutiful wife. But the family members of
the first defendant apprehended that the plaintiff will claim the LIC policy amount and the death
benefits of the port trust. The marriage between the plaintiff and her husband was admitted in the
proceedings before the Family Court. The plaintiff is the legal heir along with the mother of the
deceased husband. But the first defendant contested and attempted to deny the right of the plaintiff.
The plaintiff constrained to file the suit for declaration and consequential reliefs. The plaintiff sent a
legal notice under Section 80 of C.P.C. on 28.6.2002 to the second defendant, in which the date of
marriage was wrongly mentioned as 11.3.1987 instead of 4.11.1985. As the legal heir of the deceased
G.Janakiraman, the plaintiff is entitled to half share in the death benefits of her deceased husband
under the Hindu Succession Act and also in the Family Pension. The plaintiff is aged 37 years and
the first defendant is aged about 65 years. Under the compassionate ground the plaintiff is entitled
to get a job in the Port Trust. There is no one to lookafter the plaintiff. Hence, the suit for
declaration that the plaintiff is the legally wedded wife of the deceased G.Janakiraman, as the legal
heir of the deceased G.Janakiraman, and also for a direction directing the defendants 2 to 4 to pay
the death benefits standing in the account of the second defendant and the family pension to the
plaintiff and for costs.

3.The first defendant in her written statement would contend as follows:-

Indian Kanoon - http://indiankanoon.org/doc/1616446/ 2

 Tmt.Krishnammal (D1) vs A.Mary (Plaintiff) on 25 September, 2008

3(a)The plaintiff was not at all having any relationship with her late husband and till his death, she
was receiving only the maintenance amount as ordered by the Court. The plaintiff was booked under
adultry by P-1 Police Station for her illegal relationship with one Charles, S/o.Gnanaprakasam on
11.08.1996 and it is pending. Hence, the plaintiff is not entitled to any monetary right of her late
husband. The maintenance case is criminal in nature as to the petition under Section 125 of Cr.P.C.
The plaintiff has deserted her husband from 1986 onwards and she has not at all lived with her late
husband and moreover there is no record of evidence in any book maintained in second defendant's
office to show that the plaintiff is the legally wedded wife of the deceased Janakiraman. Only to grab
at the terminal benefits of the deceased Janakiraman, this suit has been filed by the plaintiff
vexatiously. The plaintiff does not know even the date of marriage with the deceased Janakiraman
that is why she has stated that the date of marriage as 11.3.1987 in the letter addressed to the second
defendant. The plaintiff is leading a adultry life with one Charles. Hence, the suit is liable to be
dismissed.

3(b)In the Additional Written statement the first defendant would contend that the fifth defendant
is not a necessary party to the suit and there is no proof as to the fact that the fifth defendant had
married Janakiraman. Since the plaintiff is a christian and the first defendant's son Janakiraman
was a Hindu, there is no valid marriage between the plaintiff and the deceased Janakiraman. The
plaintiff cannot take shelter under the provisions of the Hindu Marriage Act, 1955.

3(c)The second defendant in his written statement would contend that the deceased Janakiraman
was working as a Technician Grade I in Electrical and Mechnaical Department of Chennai Port
Trust. The said Janakiraman died on 18.6.2002 and the settlement of accounts of the late employee
has not been made due to rival claims. This defendant had received the legal notice dated 28.6.2002
sent by the plaintiff through her advocate. As per the family particulars furnished by Janakiraman,
the family members are as follows:- 1)Govindaswamy, Father, 43 years as on 1980, 2)Krishnammal,
Mother, 35 years as on 1980, 3)J.Mary, wife, 18 years as on 21.07.1985. Janakiraman has nominated
his mother Krishnammal for P.F. Assets. Apart from Krishnammal and J.Mary, one Lalitha (D5)
also made a claim for terminal benefits stating that she is the wife of late G.Janakiraman. In view of
the rival claims of the above said three persons, they were advised to produce an order from the
Court for receivin the terminal benefits of late G.Janakiraman. Hence, the suit is liable to be
dismissed.

4.The third defendant remained exparte.

5.The fourth defendant in his written statement would contend that the plaintiff may be legally
wedded wife of the deceased Janakiraman, -policy holder. When the deceased Janakirman took the
policies in the year 1990, he was already married as per the statement of the plaintiff, Janakiraman
was living happily with the plaintiff till his death. When Janakiraman took policies, he nominated
his mother to receive all benefits arising out of the policies in the event of his death. The
appointment of nominees is a declaration when he/she is eligible to give a valid discharge under 39
of Insurance Act, 1938. If the policy holder late Janakiraman died intestate or without making any
nomination under Section 38 of the Insurance Act naturally all the legal heirs of the deceased
acquire right to share the benefits of polices. The deceased Janakiraman had appointed a nominee,

Indian Kanoon - http://indiankanoon.org/doc/1616446/ 3

 Tmt.Krishnammal (D1) vs A.Mary (Plaintiff) on 25 September, 2008

who is none other than his mother, the question of considering the right of the plaintiff who claims
to be the wife of the deceased for insured amount will not and shall not arise. The appointment of
nominee by the policyholder disinherits all other legal heirs and the nominee alone be the
beneficiary of the proceeds of the policy. The contention of the plaintiff that the Hindu Succession
Act overrides Section 39 of the Insurance Act 1938 does not hold good. The right of nominee in
terms of Insurance Act is not in conflict with Hindu Succession Act as per Judgment reported in AIR
1984 SC 384. The plaintiff had admitted that she was receiving maintenance of Rs.400/- per month
as per the Family Court's order in M.C.No.55 of 1990. This will go to show that the plaintiff is the
wife of the late Janakiraman. There is no cause of action for the suit. Hence, the suit is liable to be
dismissed.

6.The fifth defendant in her written statement would contend that the marriage between the
plaintiff and the deceased G.Janakiraman was not solemnised on 4.11.1985 as alleged by the plaintiff
in the plaint. The fifth defendant is the legally wedded wife of the deceased Jankiraman, who
married this defendant on 15.12.1995 at Arulmigu Vadivudaiamman Thiru Koil Thiruvotriyur. The
first defendant and her son G.Ravikumar performed the marriage and this defendant lived together
with her husband G.Janakiraman till his death. This defendant does not aware of the facts under
what circumstances the Maintenance Case No.55 of 1990 was filed before the family Court. The
maintenance order itself is not sufficient that the plaintiff is the legally wedded wife of the deceased
G.Janakiraman. The fifth defendant's husband Janakiraman was an employee as Technician, Grade
I, Token No.4351 in the Chennai Port Trust. Janakiraman had taken two life insuracne Policies
Nos.44008659 and 711371095 with the third defendant and the first defendant is a nominee in LIC
policies. This defendant is being a legally wedded wife and legal heir entitled for = share in the
policy amounts. The plaintiff is not a legally wedded wife of the deceased Janakiraman. The plaintiff
had left away from the matrimonial home and now she is living with one Charles and also begotten
children through Charles. Janakiraman expired on 18.6.2002 at the Port Trust Hospital. This
defendant performed all the obsequies according to Hindu Rites and customs after the death of her
husband Janakiraman. The plaintiff did not attend the funeral. The plaintiff is not a legal heir of the
deceased husband Janakiraman. The plaintiff has no right to claim half share in the terminal benefit
of the deceased Janakiraman. The first defendant and her son G.Ravikumar with a malafied
intention to deprive the rights of this defendant (D5) as a revenge against this defendant lodged a
complaint in the All Women Police, for the harassment and cruelty caused by them to this
defendant. The first defendant and her son G.Ravikumar set up the plaintiff to file this suit and they
have colluded to obtain a compromise decree in favour of them to deprive the right of this
defendant. This defendant is the legally wedded wife of the deceased Janakiraman. This defendant
has also paid Court fee for the relief of declaring this defendant as the legally wedded wife of the
deceased Janakiraman.

7.On the above pleadings the learned trial Judge has framed four issues for trial. Before the trial
Court the plaintiff has examined himself as P.W.1 and exhibited Ex.P.1 to Ex.P.10 and on the side of
the respondents R.W.1 to R.W.4 were examined and Ex.R.1 to Ex.R.9 were marked. Ex.X.1 to Ex.X.9
were marked as Court exhibits. After going through the evidence both oral and documentary the
learned trial Judge has held that the plaintiff and D1 are entitled to each half share in all the assets
and terminal benefits of the deceased Janakiraman and has left open the question, who is entitled to

Indian Kanoon - http://indiankanoon.org/doc/1616446/ 4

 Tmt.Krishnammal (D1) vs A.Mary (Plaintiff) on 25 September, 2008

the family pension to be decided by he Port Trust Authority as per the rules in terms of the judgment
delivered by him and also held that the plaintiff and D1 are entitled to a share in the amount due to
the LIC Policies of the deceased Janakiraman. Aggrieved by the findings of the learned trial Judge
the first defendant has preferred this appeal.

8.C.M.P.No.801 of 2006 was filed under Order 41 Rule 27 of CPC to receive the following documents
as additional documents.

1.Letter written by Charles to R1.

2.Reciept given by the Pulianthope Police for having received the complaint from Charles.

3.GPF/CPF statement from Chennai Port Trust

4.Identity card of the deceased Janakiraman

5.Pay Bill of the deceased Jankairaman

6.Last Will executed by the deceased Jankiraman, dated 17.6.2002.

7.Death report given by the Port Trust Hospital, Chennai.

8.Report of death given by the burial ground authority.

9.Death certificate of Janakiraman

10.Uthirakiryai card

11.Legal heirship certificate

12.Letter sent by the Chief Mechanical Engineer to the appellant.

13.Ration Card.

Out of the above said 13 documents the only relevant document is the alleged the last Will executed
by the deceased Janakiraman on 17.6.2002. A perusal of the xerox copy of the Will dated 17.6.2002
shows that it has not been attested by any of the witnesses. Under Section 68 of the Evidence Act, a
Will is a document to be attested atleast by two witnesses. Under such circumstance, no useful
purpose will be served even if the said Will is allowed to be received as an additional document.
Even the legal heir certificate produced by the petitioner shows that it cannot be produced before
the Court of law. The other documents viz., death certificate of Janakiraman, reciept given by the
Pulianthope Police for having received the complaint from Charles, GPF/CPF statement from
Chennai Port Trust, Identity card of the deceased Janakiraman, Pay Bill of the deceased
Janakiraman, Death report given by the Port Trust Hospital, Chennai, Report of death given by the

Indian Kanoon - http://indiankanoon.org/doc/1616446/ 5

 Tmt.Krishnammal (D1) vs A.Mary (Plaintiff) on 25 September, 2008

burial ground authority, Death certificate of Janakiraman, Uthirakiryai card, Letter sent by the
Chief Mechanical Engineer to the appellant and Ration Card are all of no use to decide the issue in
this case. Hence, CMP.No.803 of 2008 is liable to be dismissed.

9.As far as the above appeal is concerned the following points arose for consideration:-

1)Whether the plainiff is the legally wedded wife of the deceased Janakiraman?

2)Whether the decree and judgment in O.S.No.153 of 2002 on the file of the II Additional Family
Court, Chennai, is liable to be set aside for the reasons stated in the memorandum of appeal?

10.Point No.1:-Ex.P.2 is the copy of the order in M.C.No.55 of 1990 filed by the plaintiff against
Janakiraman under Section 125 of Cr.P.C. for maintenance. Under the said petition the present
plaintiff was awarded a maintenance of Rs.400/- pm. The marriage invitation card dated 4.11.1985
was produced and marked as Ex.P.1 in this suit, which was marked as Ex.P.2 in the said M.C.No.55
of 1990. The said Janakiraman till his life time has not preferred any appeal to set aside the order
passed in M.C.No.55 of 1990. The first defendant is the mother of the deceased Janakiraman /
mother-in-law of the plaintiff. Ex.X.1 to Ex.X.9 were marked to show that while Janakiraman was
alive, he had preferred a police complaint against the plaintiff stating that she was living in adultry
and was living with one Charles. But those complaints are all emanated after the order for
maintenance was passed in favour of the plaintiff under M.C.No.55 of 1990 dated 15.4.1991. So we
cannot attach any relevancy to Ex.X.1 to Ex.C.9 because they are motivated and only to assassinate
the character of the plaintiff. Those complaints have been preferred against the plaintiff by
Janakiraman under Ex.X.3, 5 etc., Further it is pertinent to note that the deceased Janakiraman
while he was alive had filed O.P.NO.1148 of 1994 for divorce under Section 13(1)(i)and (ib) of the
Hindu Marriage Act, 1955 against the plaintiff herein and the said Charles. The relief asked for
under the said OP by the plaintiff was a decree for divorce against R1 therein / plaintiff herein. The
certified copy of the order passed in O.P.No.1148 of 1994 was marked as Ex.P.10 before the trial
Court, which shows that Janakiraman failed to pursue the said petition and the said petition was
dismissed on 4.2.1997 itself and thereafter till the death of the Janakiraman on 18.6.2002,
Janakiraman has not taken any steps to revive the said petition. While passing a decree for
maintenance under Ex.P.2 the learned II Additional Family Court has considered all the
circumstances and after coming to the conclusion that the present plaintiff / petitioner in M.C.No.55
of 1990 is a legally wedded wife of Janakiraman had awarded a maintenance amount of Rs.400/-
per month. It is in evidence that the said maintenance amount was subsequently been enhanced to
Rs.500/- pm. Janakiraman has also not taken any steps to set aside the order of maintenance
passed in M.C.No.55 of 1990. Under such circumstance, it cannot be said that the plaintiff is not a
legally wedded wife of Janakiraman. The fifth defendant would contend that she is the legally
wedded wife of Janakiraman and she has also paid Court fee for declaration of the same. According
to her, her marriage with Janakiraman was solemnized at Vadioodai Ammal Temple, Thiruvetriyur
and on the date of marriage itself the parents of D5 had offered gifts to the bridegroom viz.
Janakiraman. Ex.R.1 is the 'Seervarisai list' (gifts list) relied on by D5 in support of her contention.
To prove Ex.R.1, D5 has also examined one Aramuthu (R.W.4). But the said Aramuthu in his
cross-examination would state that he does not know who wrote Ex.R.1. Under such circumstance,

Indian Kanoon - http://indiankanoon.org/doc/1616446/ 6

 Tmt.Krishnammal (D1) vs A.Mary (Plaintiff) on 25 September, 2008

the presence of R.W.4 at the time of execution of Ex.R.1 itself is highly doubtful. The other witness
to Ex.R.1 is Paulraj, who was not examined to prove that contention of D5 that the marriage between
her(D5) and Janakiraman took place at Vadioodai Amman Kovil Temple, Thiruvetriyur. According
to R.W.4, after D5 and the deceased lived together as husband and wife in a Port Trust quarters,
which belongs to the uncle of Janakiraman. But the said uncle of Janakiraman ie, the owner of the
alleged port trust quarters was not examined on the side of D5. Under such circumstance, as rightly
held by the learned trial Judge it cannot be said that D5 is the legally wedded wife of the deceased
Janakiraman. The learned trial Judge has observed that even though the name of D1 was pointed
out as a nominee in the LIC policies of Janakiraman as per the Hindu Succession Act, the legal heirs
of the deceased Janakiraman are all entitled to a equal share in the amount due under the LIC
Polices, ie., D1 (mother) half share and plaintiff (wife) half share. As rightly held by the learned trial
Judge, the Port Trust Authorities have to consider as per the rules to whom the family pension is
payable as class-1 heirs of Janakiraman under the Hindu Successions Act. The plaintiff and D1 are
each entitled to half share in all the assets and terminal benefits of the deceased Janakiraman. I do
not find any reason to interfere with the well considered judgment of the learned trial Judge, which
is neither infirm nor illegal. Hence, I hold on Point No.1 that the plaintiff is the legally wedded wife
the of the deceased Janakiraman.

11.Point No.2:- In view of my findings in the earlier paragraphs, I do not find any reason to interfere
with the judgment of the learned trial Judge in O.S.No.153 of 2002 on the file of the II Additional
Family Court, Chennai, which is neither illegal nor inform. Point No.2 is answered accordingly.

12.In fine, the appeal is dismissed confirming the decree and judgment of the learned trial Judge in
O.S.No.153 of 2002 on the file of the II Additional Family Court, Chennai. No costs. At this juncture
the learned counsel appearing for the fifth defendant would represent that D5 had lived with
Janakiraman for more than seven years. If it is so, while grantng family pension the said fact may be
taken into consideration by the Port Trust Authorities as per law. C.M.P.No.801 of 2006 is
dismissed.

25.09.2008 Index :Yes/No Web :Yes/No ssv NOTE:- ISSUE ON 26.09.2008 To, The II Additional
Family Court, Chennai.

A.C.ARUMUGAPERUMAL ADITYAN, J.

ssv A.S.No.496 of 2006 25.09.2008

Indian Kanoon - http://indiankanoon.org/doc/1616446/ 7